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Insurance -- Uninsured motorist -- Action to recover uninsured motorist benefits -- Argument -- Remarks by insured's counsel during closing argument regarding insurer's alleged litigation practices and its alleged attempt to shirk its contractual obligations to insured were improper, but trial court did not abuse discretion in denying insurer's motion for new trial where insurer made no contemporaneous objection to the improper remarks -- Insurer was not entitled to new trial on the basis of improper but unobjected-to remarks where insurer failed to establish that remarks were harmful or that the remarks were incurable

MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. VICTOR A. MORETA, Appellee. 2nd District. Case No. 2D05-5945. Opinion filed May 2, 2007. Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Acting Circuit Judge. Counsel: Elizabeth K. Russo and Jonathan L. Gaines of Russo Appellate Firm, P.A., Miami, and Law Offices of Thomas E. O'Hara, Clearwater, for Appellant. Nancy A. Lauten and George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Appellee.
(WALLACE, Judge.) Mercury Insurance Company of Florida appeals an adverse judgment entered against it on Victor A. Moreta's claim for uninsured/underinsured motorist (UM) benefits. Mercury raises three issues concerning the trial court's denial of its motion for new trial. All of the issues raised by Mercury are without merit, and we affirm the judgment. However, we write to address Mercury's point concerning the repeated and extensive remarks made by Mr. Moreta's counsel during closing argument about Mercury's alleged litigation practices and its alleged attempt to shirk its contractual obligations to Mr. Moreta.1 According to Mercury, these remarks were so exceptionally objectionable that they fall within the extremely limited exception to the rule requiring a contemporaneous objection to preserve a claim of error based on improper closing argument. We agree with Mercury that opposing counsel's remarks were improper, but we hold that the trial court did not abuse its discretion in denying Mercury's motion for new trial when Mercury made no contemporaneous objection to the improper remarks.


I. THE FACTUAL BACKGROUND
A. The Collision
On March 30, 2002, Mr. Moreta was involved in an automobile accident at the intersection of Dale Mabry Highway and West Lambright Street in Tampa. Joseph A. Colon was the driver of the other vehicle involved in the accident. Mr. Colon ran a red light, and Mr. Moreta's vehicle hit Mr. Colon's vehicle in a “T-bone” type collision.
B. Mr. Moreta's Subsequent Medical Treatment
Mr. Moreta did not immediately seek medical attention after the accident. Instead, he went home. Mr. Moreta later sought treatment for back pain that he attributed to the force of the collision. Approximately two years after the accident, a neurologist diagnosed Mr. Moreta as having a herniated disc at the L5-S1 level and a bulge at the L4-5 level. In December 2004, a surgeon performed a left L4-5 percutaneous endoscopic discectomy on Mr. Moreta.
C. The Insurance Policy
When the accident occurred, Mr. Moreta's wife had a private passenger automobile policy with Mercury. Mr. Moreta was listed as one of the “DRIVERS” on the policy. The policy terms pertinent to UM coverage provided, in pertinent part:
We will pay for damages, other than punitive or exemplary damages, which an insured person is entitled to recover from the owner or operator of an uninsured car because of bodily injury:
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance or use of an uninsured car.
The bodily injury must be a serious injury as described in Section 627.737(2) of the Florida Motor Vehicle No-Fault Law before we will pay for damages consisting of pain, suffering, mental anguish, or inconvenience.
Mr. Moreta qualified as “an insured person” within the meaning of the policy. Mrs. Moreta's policy with Mercury provided for non-stacked UM coverage with a policy limit of $25,000 per person and $50,000 per accident.
D. The Lawsuit and the Trial
In February 2004, Mr. Moreta filed a two-count complaint against Mr. Colon and Mercury. Count one of the complaint was for negligence against Mr. Colon. In the second count, Mr. Moreta sought to recover UM benefits from Mercury. Mr. Moreta alleged that Mr. Colon was an underinsured motorist within the meaning of the policy of insurance issued by Mercury. One week before trial, Mr. Moreta took a voluntary dismissal of his claim against Mr. Colon.
In September 2005, the case went to trial before a jury on Mr. Moreta's UM claim. At trial, Mercury stipulated that Mr. Colon had been negligent and that Mr. Moreta had not been comparatively negligent. Thus the issues to be decided by the jury were (1) whether Mr. Moreta had sustained an injury as a result of the collision; (2) if so, whether the injury was permanent within a reasonable degree of medical probability or involved the significant and permanent loss of an important bodily function; and (3) the amount of the damages, if any, to which Mr. Moreta was entitled. In the absence of any issues concerning responsibility for the collision, the trial developed into a battle of expert medical witnesses. Mr. Moreta's experts testified that his back problems and surgery resulted from the collision. The surgeon who had operated on Mr. Moreta also testified that Mr. Moreta would probably require further surgery -- a fusion at the L5-S1 level. In response, Mercury's expert testified that whatever injuries Mr. Moreta had sustained in the accident were resolved within a few months after the incident. The defense expert opined that the disc problems in Mr. Moreta's back were not caused by the collision. Instead, Mercury's expert attributed Mr. Moreta's back problems to another -- albeit unknown -- cause that occurred after the original problems had been resolved.
At the conclusion of the evidence, the trial court directed a verdict in favor of Mr. Moreta on the issue that the accident had caused an injury. The trial court also ruled that Mr. Moreta was entitled to recover his accrued medical expenses through July 17, 2003. The trial court denied Mr. Moreta's motion for a directed verdict on the issues of permanency and the significant and permanent loss of an important bodily function. Based on Mercury's stipulation on the issue of negligence and on the trial court's grant of a partial directed verdict, the matters submitted to the jury were limited to the medical issues and damages. With this background, we now turn to the remarks made by opposing counsel in his closing argument.
II. OPPOSING COUNSEL'S REMARKS MADE
DURING CLOSING ARGUMENT
Mercury's complaints about opposing counsel's closing argument focus on his repeated comments about Mercury's alleged litigation practices and its alleged attempt to shirk its contractual obligation to Mr. Moreta. Initially, we note that Mercury's counsel first raised this topic with the trial court after jury selection was completed and before counsel began their opening statements:
[MERCURY'S COUNSEL]: Judge, just very briefly. I provided the Court and [Mr. Moreta's counsel] has decided to follow a case of State Farm versus Welburn[2] with the argument that the UM carrier was supposed to be there for the insured at a certain time.
THE COURT: Well, I think we talked about that earlier, and I think what we decided was there was some language that could be said but maybe not to the extent from which you were suggesting.
[MERCURY'S COUNSEL]: Okay.
THE COURT: Is that -- when I read that case, it seemed to say that you can't use the words ["]they should have been there for you["] and try to invoke sympathy for the jurors, but I think he can illustrate the relationship between the two and that was his insurance company. There's no problem with that. That's perfectly fair game.
But to sit there and open his heart and say, oh, you know, they left him in the street alone in the rain or something, they left him out hanging, maybe along those lines. Is that kind of what you're saying?
[MERCURY'S COUNSEL]: Right. I just want to make sure that we're going to follow that other case and --
THE COURT: I will allow that there's a nexus, a relationship there, a business relationship, and obviously you can talk about what the contract says, right? Because that's a fact. The contract says that if I get uninsured, whatever the contract says, I think that's a fact. But if he sits there and pours his heart out and says, oh, I left them in the cold or something.
I understand your point. If I start seeing [Mr. Moreta's counsel] going down that emotional view with the jurors for sympathy, then I can stop that. But, again, a business factual basis I don't think that case stops a relationship, a business contract nexus. Does It? I don't think it does.
[MERCURY'S COUNSEL]: No.
[MR. MORETA'S COUNSEL]: Plus this is opening anyway. I don't intend to argue that.
THE COURT: But in general, just in general, the nexus is okay, but if I see you opening your heart -- but I don't think you'll do that. But, anyway, if that happens, object, and we'll talk about it. Okay?
[MR. MORETA'S COUNSEL]: Some people say I don't have a heart.
(Emphasis added.) With that, the trial court and the attorneys began a discussion of unrelated matters.
We note from the foregoing colloquy between the trial court and counsel that the trial court established clear ground rules governing opposing counsel's remarks concerning the relationship between Mr. Moreta and Mercury. Opposing counsel was to limit his remarks about Mercury to the “business contract nexus” between the parties and to avoid appeals based on sympathy. If Mr. Moreta's counsel exceeded these limitations and began “opening his heart,” then Mercury's counsel was to object so that the trial court could rule on the propriety of any comments made. Mercury's counsel did not demur or express any misunderstanding about the ground rules for argument that the conscientious trial judge announced in advance.
Unfortunately, once closing arguments began, both counsel appear to have either forgotten or ignored the ground rules for argument established at the beginning of the trial. After a few preliminary remarks, opposing counsel launched his closing argument with an attack on Mercury's alleged claims-handling practices and litigation tactics. Using an analogy drawn from his own college art history course, Mr. Moreta's counsel argued that there were certain recurring themes one could identify in every case where Mercury was the insurance carrier:
[I]n college I took an art history course, actually, and I'm not here to tell you that I'm an art expert because I'm not. But I'll tell you that what I learned from that the [sic] course is, is that if one studies an artist, you can tell by their style if that painting oftentimes [sic] was done by him or her. For example, there was an artist long ago by the name of El Greco, Spanish for the word [“]The Greek.[”] He was born in Greece and he spent a lot of his time in Spain. And you could tell me [sic] after a while, that his paintings were often made of icons, and they had elongated figures, they had a kind of real -- figures, and long fingers, and you could tell that that was an El Greco work. And so the subject of the painting may be different but there was kind of a recurring theme or recurring motif throughout his paintings.
For example, there was another artist by the name of Rubens, who was Flemish, studied in Venice, and his paintings were distinct for the way he used shimmering light and the way he used bright colors; and, once again, you could recognize his works because of this recurring theme, his recurring motif throughout his works.
Now, the recurring theme in a Mercury insurance case is to blame anything and everything but the accident for the injury. And when that doesn't work, they say, “We don't know what it was but it just wasn't the motor vehicle accident that caused these problems.”
Question posed, “If it wasn't the motor vehicle accident, what was it?” “We don't know but it must have been something.”
“Can you point to an event?” Was the question. “No, we can't.”
A little later, Mr. Moreta's counsel asserted that Mercury's conduct was “worse” because the company was mistreating its own insured:
[T]rial by jury should be a search for the truth and not a win at all costs. What's worse is this is their own insured.
Now, even though this is an adversarial relationship, technically, the reality is that Mr. Moreta's insured by Mercury. And you got - - one must remember that when one points the finger at somebody else, three fingers are pointing back to themselves. I suggest to you that three fingers are pointing back to themselves in this case for the way they've treated him.
Next, opposing counsel told the jury what his fourteen-year old son would have said about Mercury's alleged mistreatment of Mr. Moreta:
I have a 14-year-old son, he plays sports, he is an athlete, and if he were here, he'd say, “Come on, dog, just give it up. Just give it up.” And they're not giving it up.
After discussing the medical issues in the case, opposing counsel made a series of remarks suggesting that Mercury owed Mr. Moreta a “debt.” Mercury's defense of the UM claim -- opposing counsel claimed -- was an attempt by the company to shirk its contractual responsibility to Mr. Moreta. Expanding on this theme, opposing counsel called on the jury to exercise its unlimited power to right the wrong:
As I contended from the very beginning, a debt was created on March 30th, 2002, a debt was created by Mercury Insurance Company, and we're going to ask you to right a wrong that has occurred.
. . . .
I believe that there are no coincidences in life, that things happen for a reason; and that you're on this jury for a reason, that you're on this jury because you're going to right that wrong, and because you're going to use your immense power as a juror to award restitution.
. . . .
Now, the lack of accepting responsibility is one of the biggest problems that we face in our society today . . . and that people don't want to spent [sic] responsibilities for their actions. And, in fact, corporations are fictional people.
And there's a book written, actually, it's called, I Learned Everything I Needed to Know in Kindergarten.[3] Some of you may be familiar with it. It talks about play well with others, and basically what they're saying is these are things that you can use as an adult: Play well with others, something we can use; clean up after your own mess, that's something we can use; and be responsible for your actions. We're asking Mercury to read that book and not try to avoid their responsibility by coming in here and asking you to award less than [the] full amount of damages.
On rebuttal, opposing counsel concluded his argument by reiterating his claim that Mercury was attempting to evade its contractual obligation to Mr. Moreta:
[Mr. Moreta] has a contract with Mercury. They're trying to avoid their responsibility. He has a relationship with Mercury. It's a contractual relationship, and we're asking them to live up to their responsibility under the contract. We're asking for the full amount of this compensation in the amount of $1.5 million.
. . . .
. . . One thing we really do agree on is this is wrong, it's wrong what they're doing to their own insured. It ain't right. They have a handshake agreement, that's what a contract is, handshake, they have a contract and they're not living up to the terms and conditions of the contract, and we ask that you hold them to it.
Thank you.
Mercury's counsel did not object to any of the foregoing remarks. Even at the conclusion of opposing counsel's rebuttal argument, Mercury's counsel made no objection, did not request any curative instructions, and made no motion for a mistrial.
III. THE JURY'S VERDICT AND POSTTRIAL MATTERS
In his closing argument, opposing counsel asked the jury to award Mr. Moreta damages in the amount of $1.5 million. The jury returned a verdict in favor of Mr. Moreta but awarded a lesser amount -- $800,000. The jury's award was composed of the following elements: $30,200 for past medical expenses, $325,000 for future medical expenses, $50,000 for past pain and suffering, and $394,800 for future pain and suffering.
After the entry of the verdict, Mercury served a motion for new trial that raised several grounds. With respect to the closing argument, Mercury asserted in its motion that fundamental error occurred when opposing counsel argued that “Mercury had engaged in a pattern of wrongfully refusing to pay claims when due.” The trial court denied the motion for new trial. The trial court also entered judgment in favor of Mr. Moreta and against Mercury for $25,000 -- the amount of the UM policy limit.
IV. DISCUSSION
A. Introduction
A trial court may grant a new trial based on improper closing argument by counsel. See Allison Transmission, Inc. v. J.R. Sailing, Inc., 926 So. 2d 404, 407 (Fla. 2d DCA 2006) (citing Carlton v. Johns, 194 So. 2d 670 (Fla. 4th DCA 1967)). “If the issue of an opponent's improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.' ” Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1271 (Fla. 2006) (quoting Tanner v. Beck, 907 So. 2d 1190, 1196 (Fla. 3d DCA 2005)).
A different standard for granting a new trial based on improper argument applies where there is no contemporaneous objection and motion for mistrial. In Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), the Supreme Court of Florida announced a four-part test to be applied in assessing motions for new trial in civil cases based on claims of improper but unobjected-to remarks made during closing argument. As a preliminary matter, in order to preserve the issue for appellate review, the complaining party must at least challenge the improper but unobjected-to argument in the trial court by way of a motion for new trial. Id. at 1027. To prevail on such a motion, the complaining party must establish that the argument was (1) improper, (2) harmful, (3) incurable, and (4) so damaging to the fairness of the trial that the public's interest in our system of justice requires a new trial. Id. at 1031; Platz v. Auto Recycling & Repair, Inc., 795 So. 2d 1025, 1027 (Fla. 2d DCA 2001). If the trial court finds that these four criteria have been met, “it must enter an order granting a new trial specifically identifying both the improper arguments of counsel and the actions of the jury resulting from those arguments.” Id. (citing Murphy, 766 So. 2d at 1030). An appellate court applies an abuse of discretion standard in reviewing a trial court's order granting or denying a new trial based on unobjected-to closing argument. Murphy, 766 So. 2d at 1030-31.
The Murphy court recognized that very few cases would meet its stringent four-part test for obtaining a new trial based on improper but unobjected-to closing argument. Such cases will be rare exceptions to the rule requiring a contemporaneous objection. Indeed, the Murphy court described the rule it announced as “an escape valve with a very narrowly defined parameter and of extremely limited application.” Id. at 1026. This court has previously characterized Murphy's four-part test as “extraordinarily demanding.” Platz, 795 So. 2d at 1027. Noting the “shift in dynamics occasioned by” Murphy, the First District summarized Murphy's lesson to trial counsel as follows: “[A] remedy will almost always be tied to a contemporaneous objection.” Bocher v. Glass, 874 So. 2d 701, 704 (Fla. 1st DCA 2004). With these limitations in mind, we turn now to an examination of Mercury's argument that opposing counsel's remarks during closing argument met the four-part test of Murphy.
B. The Application of Murphy's Four-Part Test
Initially, we observe that Mercury's counsel did not make contemporaneous objections to any of the remarks made by opposing counsel that are challenged on this appeal. Moreover, Mercury did not request a curative instruction or move for a mistrial at the conclusion of opposing counsel's argument. However, Mercury did serve a motion for new trial based on the unobjected-to remarks, thereby preserving the issue for review. Our task is to determine whether the trial court abused its discretion in denying Mercury's motion for new trial based on Murphy's four-part test.
1. The Challenged Argument Must Be Improper
In applying the four-part test of Murphy, we first look to whether opposing counsel's remarks were improper. Upon reviewing the challenged remarks in context, we conclude that they were improper for multiple reasons. First, opposing counsel's remarks violated the trial court's ruling announced at the beginning of the trial about the scope of proper comment on the relationship between Mr. Moreta and Mercury. Opposing counsel's remarks went far beyond a description of the “business contract nexus” that the trial court had declared was permissible. Instead, opposing counsel did precisely what the trial court had ruled he could not do -- he “poured out his heart” and accused Mercury of leaving Mr. Moreta “out hanging.” At least where prejudice is shown, comments during closing argument that violate a pretrial order may warrant the granting of a new trial. See USAA Cas. Ins. Co. v. Howell, 901 So. 2d 876, 879 (Fla. 4th DCA 2005); Leyva v. Samess, 732 So. 2d 1118, 1121 (Fla. 4th DCA 1999).
Second, opposing counsel's criticism of Mercury's alleged litigation tactics and practices was not based on matters in evidence. Using the analogy to the paintings of El Greco and Rubens, opposing counsel described practices that he claimed one could identify in every case where Mercury was the insurance carrier. Because there was no evidence before the trial court to support these claims, it was improper for counsel to make them. See Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736, 737-38 (Fla. 3d DCA 1989). Moreover, Mercury's alleged practices in other cases were irrelevant to any issue to be determined by the jury.
Third, opposing counsel's rebuke of Mercury for failing to pay UM benefits to Mr. Moreta and thereby breaching its alleged contractual obligations to him is the same type of argument that was condemned by the Third District in State Farm Mutual Automobile Insurance Co. v. Revuelta, 901 So. 2d 377, 380 (Fla. 3d DCA 2005). Mr. Moreta's action against Mercury was for the recovery of UM benefits, not an action for breach of contract or for bad faith. Contrary to opposing counsel's assumption, an action to recover UM benefits is not an action for the breach of a contract of insurance. An action to recover UM benefits is based on a contract, but “it has its underpinnings in tort liability.” Auto-Owners Ins. Co. v. Dewberry, 383 So. 2d 1109, 1109 (Fla. 1st DCA 1980); see also Geico Gen. Ins. Co. v. Graci, 849 So. 2d 1196, 1199 (Fla. 4th DCA 2003) (stating that an action on a contract to recover UM benefits “is not an action for a breach of that contract; rather, it is an action filed pursuant to the contract”).
In fact, the basis of Mr. Moreta's action against Mercury was the same as the basis of the action that he had filed against Mr. Colon (the underinsured third party tortfeasor) to recover damages for bodily injuries. Graci, 849 So. 2d at 1199 (citing State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So. 2d 632 (Fla. 1982)). Under the UM policy purchased by Mrs. Moreta, Mercury was obligated to pay only those damages “which an insured person is entitled to recover from the owner or operator of an uninsured car.” Thus Mercury stood in the shoes of the underinsured motorist and had the right to raise all substantive defenses to Mr. Moreta's action that the underinsured motorist could have raised. See Allstate Ins. Co. v. Boynton, 486 So. 2d 552, 556 (Fla. 1986). For these reasons, it was improper for opposing counsel to argue to the jury that Mercury had “breached” the contract or that it was shirking its responsibilities to Mr. Moreta. See Howell, 901 So. 2d at 879; Revuelta 901 So. 2d at 380.
Finally, it was improper for counsel to tell the jury what his fourteen-year-old son would have thought about Mercury's defense of the case. Counsel's son was not a witness who had testified at trial. If counsel's son had testified, his opinion about Mercury's litigation tactics would not have been admissible in evidence for a variety reasons. More important, irrelevant stories and information about counsel's family have no place in closing argument. See Bocher, 874 So. 2d at 703 (describing trial court ruling sustaining objection to plaintiffs' counsel's attempt to tell a story about him and his grandfather walking in the Florida woods when counsel was a child); Muhammad v. Toys “R” Us, Inc., 668 So. 2d 254, 258 (Fla. 1st DCA 1996) (observing that “irrelevant familial rhetoric must not be condoned”); Metro. Dade County v. Cifuentes, 473 So. 2d 297, 298 (Fla. 3d DCA 1985) (holding that closing argument by plaintiff's counsel in a wrongful death action about telling his wife the previous night for the first time in a long time that he loved her and about his fear of living if someone he loved died was improper); cf. Airport Rent-A-Car, Inc. v. Lewis, 701 So. 2d 893, 896-97 (Fla. 4th DCA 1997) (noting the impropriety of plaintiff's counsel's remarks during his cross-examination of defense expert that, “My daddy was a preacher, so I know what the truth is . . . .”). In this case, opposing counsel's discussion of his son's hypothetical opinion was nothing more than a transparent attempt to curry favor with the jury and to further prejudice it against Mercury.
2. The Argument Must Be Harmful
Under the second part of the Murphy test, the complaining party must establish that the challenged argument was harmful. Murphy, 766 So. 2d at 1029-30. The harmfulness requirement serves as a reminder to trial courts and appellate courts that the remedy of a new trial is not a tool to punish the misconduct of lawyers who transgress the proper bounds of closing argument. Id. at 1029. Instead, harmfulness “carries a requirement that the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.” Id. The bar of the harmfulness requirement is set quite high. “[T]he improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.” Id. at 1030.
The second part of the Murphy test is more difficult to apply in this case than the first part of the test. Opposing counsel's remarks were unquestionably improper. However, the question of the harmfulness of those remarks under Murphy's standard is not as easy to determine. On the one hand, opposing counsel depicted Mercury as a heartless corporate giant that had broken faith with Mr. Moreta. According to opposing counsel, Mercury's standard litigation tactic in UM cases is to raise flimsy excuses to avoid paying its insureds -- such as Mr. Moreta -- the just compensation to which they are contractually entitled. Opposing counsel's incessant drumbeat of criticism was calculated to elicit sympathy for Mr. Moreta from the members of the jury and to persuade them to draw inferences against Mercury that had no basis in the evidence presented at trial or in the applicable law. Moreover, Mercury presented credible evidence at trial from which the jury might have concluded that Mr. Moreta's continuing back problems and subsequent surgery were entirely unrelated to the March 2002 accident. In light of these factors, we are inclined to believe that opposing counsel's remarks had at least some impact on the jury that was prejudicial to Mercury in the defense of Mr. Moreta's UM claim.
On the other hand, Mr. Moreta presented substantial evidence that linked his continuing back problems and subsequent surgery to the accident. After reviewing the record, we think the jury probably found Mr. Moreta's expert witnesses more credible than the defense expert. And although the jury awarded Mr. Moreta a substantial sum, the $800,000 verdict was only a little more than one-half of the $1.5 million that opposing counsel had requested in his closing argument. Cf. Howell, 901 So. 2d at 879 (finding that counsel's remarks did not meet Murphy's harmfulness requirement where plaintiff sought damages in excess of $260,000 and the jury awarded $300,000, a slightly larger amount). Under these circumstances, we are unable to say that the jury would not have reached the verdict that it did but for opposing counsel's remarks. Thus Mercury has failed to establish harm -- the second part of the Murphy test.
3. The Argument Must Be Incurable
We move now to the third part of the Murphy test -- that the challenged argument was incurable. In order to establish Murphy's third prong, “a complaining party must establish that even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.” Murphy, 766 So. 2d at 1030. The Murphy court noted that “it will be extremely difficult for a complaining party to establish that the unobjected-to argument is incurable.” Id.
The challenged remarks by opposing counsel in this case were not only highly improper, they were also repetitive and extensive. Nevertheless, they were not incurable. Generally speaking, improper references to insurance matters in closing argument may be cured by an appropriate instruction to the jury from the trial court. See S. Motor Co. of Dade County v. Accountable Constr. Co., 707 So. 2d 909, 911 (Fla. 3d DCA 1998); Allstate Ins. Co. v. Wood, 535 So. 2d 699, 700 (Fla. 1st DCA 1988). In several Florida cases, comments similar to those expressed by opposing counsel in this case have been deemed to be curable by an appropriate instruction. See Howell, 901 So. 2d at 879-80; Allstate Ins. Co. v. Buzdigian, 776 So. 2d 1104, 1104 (Fla. 5th DCA 2001); Wood, 535 So. 2d at 700. In this case, the trial court instructed Mercury's counsel at the beginning of the trial that if Mr. Moreta's counsel began “opening his heart,” then Mercury's counsel was to object. Accordingly, if Mercury's counsel had objected the first time Mr. Moreta's counsel made the offending remarks, the trial court could have sustained the objection, given a curative instruction to the jury, and admonished opposing counsel if he again engaged in improper argument. See Buzdigian, 776 So. 2d at 1104 (describing how counsel's contemporaneous objection to improper closing argument elicited an effective response from the trial court that cured any error). And by objecting to the first offending comment, Mercury could have deterred the repetition of the improper remarks that resulted in the “cumulative effect” about which it now complains. Thus Mercury has also failed to establish incurability -- the third part of the Murphy test.
4. Consideration of the Public's Interest in our System of Justice
Under Murphy, the analysis does not proceed to the last part of the four-part test unless the complaining party establishes that the argument being challenged is improper, harmful, and incurable. See Murphy, 766 So. 2d at 1030; Telemundo Network, Inc. v. Spanish Television Servs., Inc., 812 So. 2d 461, 467 (Fla. 3d DCA 2002) (Sorondo, J., specially concurring). Since Mercury has not established that the improper argument was both harmful and incurable, we need not reach the fourth part of the Murphy test.
V. CONCLUSION
For these reasons, we conclude that the trial court did not abuse its discretion in concluding that Mercury did not establish its entitlement to a new trial under the test of Murphy. Accordingly, we affirm the trial court's judgment.
Affirmed. (CASANUEVA and STRINGER, JJ., Concur.)
__________________
1Mr. Moreta's counsel on this appeal did not represent him in the trial court.
2Mercury's counsel did not provide a citation for this case, and we have not been able to find one. Perhaps the case Mercury's counsel referred to is State Farm Mutual Automobile Insurance Co. v. Revuelta, 901 So. 2d 377 (Fla. 3d DCA 2005). The Third District issued its opinion in Revuelta approximately four months before Mr. Moreta's case went to trial.
3We presume that the book referred to here is Robert Fulghum, All I Really Need to Know I Learned in Kindergarten: Uncommon Thoughts on Common Things (Villard Books 1988).
Torts -- Sovereign immunity -- Waiver -- Counties -- No error in granting directed verdict in favor of county where plaintiff failed to comply with process service requirements of section 768.28(7) -- Attorney's fees -- Offer of judgment -- Error to deny attorney's fee award to county where county fully complied with requirements of section 768.79
BERKLEY WILLIAMS, Appellant, vs. MIAMI-DADE COUNTY, Appellee. 3rd District. Case No. 3D05-1545. L.T. Case No. 04-9120. Opinion filed May 2, 2007. An Appeal from the Circuit Court for Miami-Dade County, Stuart M. Simons, Judge. Counsel: Berkley Williams, in proper person. Counsel: Murray A. Greenberg, County Attorney, and Jorge Martinez-Esteve, Assistant County Attorney, for appellee.
(Before FLETCHER, SHEPHERD, and CORTIÑAS, JJ.)
(FLETCHER, Judge.) Berkley Williams has appealed an order granting a directed verdict pursuant to section 768.28, Florida Statutes (2003), in favor of Miami-Dade County, as well as an order denying his motion to vacate the directed verdict. Miami-Dade County has cross-appealed the trial court's partial denial of its motion pursuant to section 768.79, Florida Statutes (2005), for costs and attorney's fees (attorney's fees having been denied and costs granted).
We affirm the order granting the directed verdict as Williams did not prove compliance with section 768.28, which requires plaintiffs in negligence suits against the state, its agencies, and subdivisions to follow strict procedures in order to take advantage of the State's waiver of sovereign immunity for tort liability. Specifically, Williams failed to prove compliance with the process service requirements of section 768.28(7). This is fatal to his action. Metropolitan Dade County v. Lopez, 889 So. 2d 146 (Fla. 3d DCA 2004).
As to the County's cross-appeal we reverse that portion of the order which denied an attorney's fee award to the County notwithstanding that the County fully complied with the requirements of section 768.79, for an award of attorney's fees. See TGI Friday's, Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla. 1995) (“[W]e conclude that the legislature has created a mandatory right to attorney's fees, if the statutory prerequisites [of section 768.79] have been met.); Jordan v. Food Lion, Inc., 670 So. 2d 138, 140 (Fla. 1st DCA 1996) (“The statute [section 768.79] creates a mandatory right to attorney's fees when the statutory prerequisites have been fulfilled.”).
As in Morejon v. Metropolitan Dade County, 710 So. 2d 233 (Fla. 3d DCA 1998) “[w]e find no cognizable basis for the denial of the defendant's motion for attorney's fees and costs under section 768.79.” Thus the order on cross-appeal is reversed.1 The cause is remanded solely to determine the recoverable amounts.
Venue -- Torts -- Conspiracy -- County in which overt act in furtherance of alleged conspiracy occurred
LEWIS SAUNDERS, III, SANDRA SAUNDERS, AND SUSAN MIKESELL, Appellant, vs. A BETTER BLIND, INC., Appellee. 3rd District. Case No. 06-2912. L.T. Case No. 0617203. Opinion filed May 2, 2007. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Counsel: Jonathan R. Saunders, for appellant. Allan M. Glaser, for appellee.
(Before COPE, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.)
(PER CURIAM.) This is an appeal of an order denying the appellants' motion to dismiss or transfer the action on account of improper venue. Because the complaint alleges that the overt act in furtherance of the alleged conspiracy, see Lipsig v. Ramlawi, 760 So. 2d 170, 180 (Fla. 3d DCA 2000), occurred in Miami-Dade County, it follows that Miami-Dade County is a permissible venue. See § 47.011, Fla. Stat. (2006); Lane v. Hemophilia of the Sunshine State, Inc., 793 So. 2d 992, 995-96 (Fla. 2d DCA 2001); Straske v. McGillicuddy, 388 So. 2d 1334, 1336 (Fla. 2d DCA 1980); see also Tucker v. Fianson, 484 So. 2d 1370, 1371 (Fla. 3d DCA 1986).
Affirmed.
Torts -- Defamation per se -- Negligence -- Action against psychologist who, in connection with plaintiff's divorce proceedings, participated in counseling sessions with plaintiff's former wife and his daughters, and ultimately made report to state agency of suspected child abuse -- Record supported trial court's finding that defendant had reasonable basis to suspect abuse under the circumstances in which psychologist was informed by mother that plaintiff showered with one of the daughters and kept naked pictures of daughters on his desk and in his car -- Because report was required by law, whether defendant acted with malicious motive, as alleged by plaintiff, is irrelevant -- Litigation privilege -- Statements allegedly made by defendant regarding plaintiff to court-appointed custodial evaluator and guardian ad litem in custody proceedings were absolutely privileged -- Attorney's fees -- Justiciable issues -- Claim that trial court abused its discretion in sanctioning plaintiff under section 57.105 is not ripe for appellate review because trial court did not fix amount of fees to be paid and explicitly contemplated another hearing for that purpose -- No abuse of discretion in trial court's decision not to conduct in camera inspection of DCF report in which defendant allegedly admitted that she did not actually suspect that plaintiff abused his children -- Because defendant was required to report the suspected abuse regardless of her motive, there was no issue to be determined by the court which would have required review of the report
RICHARD S. ROSS, Appellant, v. DR. DIANE BLANK, Appellee. 4th District. Case No. 4D06-2712. May 2, 2007. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert B. Carney, Judge; L.T. Case No. 03-10261 04. Counsel: Richard S. Ross, Fort Lauderdale, pro se. Anne C. Sullivan and Miriam R. Merlo of Gaebe, Mullen, Antonelli, Esco & DiMatteo, Coral Gables, for appellee.
(Shahood, J.) Richard S. Ross (“appellant”) appeals (1) the trial court's order and final judgment granting final summary judgment in favor of Dr. Diane Blank (“Blank”) on Count I of Ross's Second Amended Complaint, (2) the trial court's order granting Blank's Motion for Sanctions pursuant to section 57.105, Florida Statutes, and (3) the trial court's order denying appellant's motion for in camera inspection of certain documents.
This case stems from the dissolution of appellant's marriage. The wife met with Blank, a practicing psychologist, several times in connection with the divorce proceeding. On one occasion, the wife took the older of the couple's two daughters with her. The wife asked the daughter to discuss with Dr. Blank the situation of the older daughter showering with appellant. The wife also brought the couple's younger daughter with her to see Blank at a different counseling session.
Appellant learned about the counseling session between Blank and his older daughter. He contacted Blank to find out what had transpired. On May 21, 2002, appellant met briefly with the wife, the older child, and Blank.
Blank subsequently consulted Dr. William Samek, a colleague with whom she was not previously familiar, for guidance about her reporting responsibilities to the Department of Children and Families (“DCF”) regarding suspected sexual abuse. Blank presented the suspected abuse situation to Dr. Samek in the form of a hypothetical, but with the understanding it was an actual case she was working. Dr. Samek was of the opinion there was sufficient evidence to suspect the possibility of child abuse by the father against the daughter. Blank made a report to DCF of a possible threat of harm regarding appellant.
Appellant sued Blank for defamation per se and negligence. Appellant alleged that Blank's failure to report any suspected abuse to DCF from March 19, 2002, to June 10, 2002, coupled with Blank's admission that she knew she had a duty to report suspected abuse, was evidence that Blank did not in fact suspect appellant had committed child abuse. Appellant claimed that Blank filed the DCF report in retaliation for appellant having her banned from further involvement with the children as psychological counselor in the divorce proceeding. Appellant alleged that Blank knew his wife's allegations were not reportable because she was informed of this by DCF, that the reporting was made maliciously for the purpose of hurting him, and that the reporting caused him mental anguish, torment, and humiliation.
Blank filed a motion for summary judgment in which she argued that her statements were made in accordance with the mandatory reporting requirements imposed on her by section 39.201(1), Florida Statutes, and that statements made in compliance therewith are immune from civil liability pursuant to section 39.203(1)(a), Florida Statutes. The motion also argued that the other allegedly defamatory statements made by Blank fell under the litigation privilege because they were made in the course of legal proceedings. As to appellant's negligence claim, the motion argued that Blank owed no duty to appellant because he was not her patient. The trial court granted Blank's motion for summary judgment as to the defamation claim and denied the motion as to the negligence claim. Appellant later voluntarily dismissed the negligence claim.
Blank also filed a motion for attorney's fees against appellant under section 57.105, Florida Statutes. The motion alleged that appellant was aware it was Blank's duty to report the suspected abuse, that appellant had no evidence that any defamatory statement was ever made to Dr. Samek, and that appellant was aware he was not a patient of Blank sufficient to satisfy the duty for malpractice. The motion sought sanctions against appellant for filing a frivolous suit. The trial court granted this motion as to the defamation claim and ordered that a hearing to determine the amount of fees and costs would be set at a later date.
Appellant filed a motion for relief from the court's order for sanctions and the summary judgment on the defamation count. He argued that Blank could still be liable for defamation despite having a duty to report suspected abuse to DCF. Appellant further requested that the court conduct an in camera review of the DCF report filed by Blank. The court declined appellant's request to inspect the DCF report in camera.
Section 39.201, Florida Statutes, sets out the mandatory reporting requirement for suspected child abuse. The statute names a non-exclusive list of professions such as physicians, teachers, and law enforcement officers, and requires that any of them “who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare shall report such knowledge or suspicion to the department . . . .” § 39.201, Fla. Stat. (2002). Section 39.203(1)(a), Florida Statutes (2002), provides immunity from liability in connection with such reporting:
Any person, official, or institution participating in good faith in any act authorized or required by this chapter, or reporting in good faith any instance of child abuse, abandonment, or neglect to the department or any law enforcement agency, shall be immune from any civil or criminal liability which might otherwise result by reason of such action.
The First District recently decided the similar case of Urquhart v. Helmich, 947 So. 2d 539 (Fla. 1st DCA 2006). In Urquhart, a child's parents sued a doctor for intentional infliction of emotional distress. Id. at 540. The parents alleged that the doctor reported the child's injury to state authorities as possibly caused by abuse or neglect in order to spite the parents for arguing with her about the infant's care. Id. at 541. The doctor moved for summary judgment and provided affidavits from several other doctors stating that under the circumstances she had a duty to report the injury. Id. In opposition to summary judgment, the Urquharts argued that the doctor's alleged anger and desire to refute one of their explanations for the child's injury provided disputed factual issues about the doctor's motive. Id. The trial court found the doctor was immune from civil liability as a matter of law and granted summary judgment in her favor. Id.
In examining the relationship between the mandatory reporting requirement of section 39.201 and the grant of immunity provided to those who make a report by section 39.203, the First District drew a distinction between the immunity provided to an ordinary citizen who makes a report and a doctor who reports possible abuse discovered in the course of treatment. Id. at 542. The court found that the doctor's feelings about the suspected abuser are irrelevant because the report is required by law. Id. The court rejected a reading of the statutes that “would lead to a conclusion that the legislature had exposed a doctor to civil liability for doing nothing more than what it has required the doctor to do under penalty of law.” Id.
Like the parents in Urquhart, appellant alleged malicious motive on the part of a health professional who reported suspected abuse to DCF. The triable issues of fact that appellant claims exist are insufficient to avoid summary judgment for the same reason as those advanced by the Urquharts: if a reasonable basis existed for Blank to report suspected abuse, her motives in doing so were irrelevant because she was required to report by the statute. The record supports the trial court's finding that Blank had a reasonable basis to suspect abuse under these circumstances. Blank's affidavit states that in the spring of 2002 she was informed by appellant's wife that appellant showered with one of the daughters and kept naked pictures of the daughters on his desk and in his car.
Appellant also claimed defamation for statements Blank allegedly made to two individuals: Dr. Martha Jacobsen, the psychologist who was the court-appointed custodial evaluator in the custody dispute; and Catherine Roselli, the guardian ad litem. Blank allegedly told Dr. Jacobsen that appellant met the criteria for a pedophile. Blank allegedly told Roselli that appellant was a pedophile or sexual abuser. Appellant's argument on this point is without merit due to the litigation privilege. “[S]tatements made ‘in connection with' or ‘in the course of' an existing judicial proceeding are protected by absolute immunity, even if they are not necessarily made in court or under oath.” Fariello v. Gavin, 873 So. 2d 1243, 1244 (Fla. 5th DCA 2004); see also Stucchio v. Tincher, 726 So. 2d 372, 374 (Fla. 5th DCA 1999). The falsity or maliciousness of the alleged statements is irrelevant to this analysis. Id. The statements were absolutely privileged as made in the course of litigation. Appellant has failed to demonstrate the trial court erred in granting summary judgment of his defamation claim.
As his second issue, appellant contends that the trial court abused its discretion in sanctioning him under section 57.105, Florida Statutes. We find that this issue is not ripe for appellate review because the trial court did not fix the amount of fees to be paid and explicitly contemplated another hearing for that purpose. See Boyce v. Cluett, 672 So. 2d 858, 860 (Fla. 4th DCA 1996); Winkelman v. Toll, 632 So. 2d 130, 131-32 (Fla. 4th DCA 1994). We dismiss the appeal from the sanction order as premature, but also note that the order contains no finding that appellant's defamation claim lacked any factual or legal support. See Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716, 717 (Fla. 3d DCA 2000)(reversing attorney's fee award where trial court's order failed to contain finding of complete absence of justiciable issue of law or fact).
Finally, appellant claims the trial court abused its discretion by failing to conduct an in camera review of a DCF report. Appellant argued that the report contained an admission by Blank that she actually did not suspect appellant abused his children. Appellant believes that the report is relevant to determination of his defamation claim.
The standard of review of the trial court's decision not to conduct an in camera inspection of the DCF report is whether the trial court abused its discretion. Elders v. State, 849 So. 2d 331, 332 (Fla. 2d DCA 2003). Section 39.202, Florida Statutes, governs confidentiality of reports and records in cases of child abuse or neglect. That statute allows a trial court to review a DCF report in camera “upon its finding that access to such records may be necessary for the determination of an issue before the court.” § 39.202(f), Fla. Stat. (2005).
Having found that Blank was required to report the suspected abuse regardless of her motive, there was no issue to be determined by the court which would have required review of the report. The trial court did not abuse its discretion in refusing to examine the DCF report in camera.
Affirmed in part, Dismissed in part. (Klein, J., and Reyes, Israel U., Associate Judge, concur.)
Insurance -- Uninsured motorist -- New trial -- Damages -- Trial court did not abuse discretion in denying insurer's motion for new trial which alleged that jurors had failed to disclose prior litigation history in responding to juror questionnaire -- Trial court abused discretion in ordering remittitur on jury's award of damages -- Award for future medical expenses was supported by evidence -- Jury could properly award damages in excess of amount stated in insured's counsel's closing argument
ALLSTATE INSURANCE COMPANY, Appellant/Cross-Appellee, v. GREG WILEY, Appellee/Cross-Appellant. 2nd District. Case No. 2D05-3403. Opinion filed May 2, 2007. Appeal from the Circuit Court for Highlands County; J. David Langford, Judge. Counsel: Sidney M. Crawford of Sidney M. Crawford, P.A., Lakeland, for Appellant/Cross-Appellee. Nancy A. Lauten and George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Appellee/Cross-Appellant.
(DAVIS, Judge.) Allstate Insurance Company (“Allstate”) challenges the final judgment entered in favor of Greg Wiley following a jury trial on Wiley's uninsured motorist claim and the trial court's denial of Allstate's motion for a new trial. Wiley cross-appeals the final judgment, alleging that the trial court erred by ordering remittitur on the jury's award. We affirm the trial court's denial of Allstate's motion for a new trial but reverse the final judgment because the trial court improperly reduced the jury's verdict.
Wiley was injured in an automobile accident and brought suit against the tortfeasor and his uninsured motorist carrier, Allstate. After obtaining a default judgment against the tortfeasor, who could not be located, Wiley proceeded to trial against Allstate. Allstate stipulated to the negligence of the tortfeasor, and the parties proceeded to trial to determine damages. The jury awarded Wiley $91,000 in past and future medical expenses.
Allstate then moved for a new trial, claiming that upon posttrial review, it discovered that two jurors had failed to properly respond to the juror questionnaires that they had completed prior to trial and that Allstate had relied upon at trial. Specifically, Allstate alleged that one juror denied having previously been a party to a lawsuit when, in fact, she had been a defendant in a small claims action and had also gone through a divorce. Another juror had identified himself as a financial planner but had failed to disclose that he had been sued recently in small claims court over a credit card debt. Although he had reported on his questionnaire that he had been a party to a claims court action in another county some years earlier, he had not reported the more recent, local claim.
Allstate also moved for remittitur, arguing that $65,000 was the maximum the jury could award given the closing argument of Wiley's attorney, who had calculated his client's past and future medical damages in the range of $55,000 to $65,000. The trial court granted the motion for remittitur and reduced the award by $25,000 but denied the motion for new trial. The final judgment entered pursuant to these rulings is the subject of this appeal.
We review the denial of a motion for new trial for an abuse of discretion. See Glover Distrib. Co. v. F.T.D.K., Inc., 816 So. 2d 1207, 1212 (Fla. 5th DCA 2002) (“The standard of review of a ruling on a motion to grant a new trial based on a juror's non-disclosure during voir dire of prior litigation history is abuse of discretion.”). Our review of this record does not disclose such an abuse. One juror's prior legal experience occurred almost seventeen years before the instant case. The other juror did disclose a prior claims court involvement, although he did not disclose the more recent lawsuit. Furthermore, although Allstate claims that this juror's credibility as a financial planner was compromised by his apparent failure to timely pay his credit card obligations, we are not persuaded that the trial judge was unreasonable in denying Allstate's motion for new trial on this basis. “If reasonable people could differ as to the propriety of the court's ruling, then the abuse of discretion standard has not been met.” Vanderbilt Inn on the Gulf v. Pfenninger, 834 So. 2d 202, 203 (Fla. 2d DCA 2002). Accordingly, we affirm the trial court's denial of the motion for new trial.
However, the trial court did abuse its discretion in reducing the jury's award of damages. See Winn-Dixie Stores, Inc. v. Robinson, 472 So. 2d 722, 725 (Fla. 1985) (stating that upon review of an order of remittitur, the appropriate standard is whether there has been a clear abuse of discretion). The undisputed testimony at trial was that Wiley had incurred approximately $11,000 in prior medical expenses, leaving the remaining $80,000 in medical expenses apparently attributable to future medical expenses. According to the evidence, Wiley had a life expectancy of about forty years; an expert witness testified that Wiley's future chiropractic care would cost between $1500 and $2000 per year. Based on this testimony, the jury's apparent award of $80,000 in future medical expenses was supported by the record.
Contrary to Allstate's argument, the jury was not limited by Wiley's attorney's closing argument in determining the amount of the damage award. See Rudy's Glass Constr. Co. v. Robins, 427 So. 2d 1051, 1053 (Fla. 3d DCA 1983) (“Furthermore, a jury may properly award damages equal to or in excess of those requested by counsel in closing argument.”). Accordingly, we conclude that the trial court's order of remittitur was an abuse of discretion and that the final judgment must be reversed. On remand, the trial court is directed to reinstate the jury's original award of damages.
Affirmed in part, reversed in part, and remanded with directions. (WHATLEY and VILLANTI, JJ., Concur.)
Torts -- Medical malpractice -- Agency -- Action against The University of Miami d/b/a The University of Miami School of Medicine, alleging vicarious liability for the negligence of treating surgeons due to their medical faculty appointments and employment with UM -- Evidence -- Any error in admission of contract between surgeon and The Public Trust d/b/a Jackson Memorial Hospital, which had not been produced prior to trial, was harmless where jury's finding that surgeon was not negligent was supported by evidence
DESSIE ADDERLY, Appellant, vs. THE UNIVERSITY OF MIAMI D/B/A THE UNIVERSITY OF MIAMI SCHOOL OF MEDICINE, Appellee. 3rd District. Case No. 3D05-2541. L.T. Case No. 03-30240. Opinion filed May 2, 2007. An Appeal from the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge. Counsel: Ratzan & Alters, P.A.; Boldt Law Firm and Kimberly L. Boldt, for appellant. Fowler White Burnett P.A., and June Galkoski Hoffman and Marc J. Schleier, for appellee.
(Before FLETCHER, RAMIREZ, and SUAREZ, JJ.)
(FLETCHER, J.) Dessie Adderly appeals from a final judgment entered in favor of The University of Miami d/b/a The University of Miami School of Medicine (UM) following a jury trial in this medical malpractice action. We affirm.
Mrs. Adderly was suffering from blood flow problems with her right leg when she underwent vascular surgery at Jackson Memorial Hospital. After the surgery, Adderly was paralyzed from the abdomen down and lost her left leg to amputation as a result of lack of blood flow. She brought a negligence action against numerous medical providers including UM and The Public Trust d/b/a Jackson Memorial Hospital. Plaintiff alleged that UM was vicariously liable for the conduct of the treating vascular surgeons, Pranay Ramdev, M.D. and Darwin Eton, M.D. due to their medical faculty appointments and employment with UM. During discovery, plaintiff requested from both UM and the Trust documents to determine the surgeons' relationship with the organizations. Pursuant to the request, a contract between Dr. Ramdev and the Trust was produced; however, it was dated subsequent to the surgery. On its pre-trial exhibit list, UM did not list another contract as intended evidence. Allegedly based on the assumption that no controlling contract existed, plaintiff dismissed the Trust as a defendant four days prior to trial.
At trial, plaintiff had to prove that Dr. Ramdev deviated from the standard of care in his treatment of the patient, and that in so doing he acted as an agent of UM. On the issue of negligence, Adderly's expert testified that the surgeons incorrectly operated resulting in blood flow being cut off to the pelvis which ultimately led to loss of what was her good leg. The treating surgeons, however, claimed that upon visual observation they discovered the patient's aorta was occluded and that this necessitated a change from the original surgical plan (an end-to-end graft instead of an end-to-side graft). On cross-examination, plaintiff's expert conceded that if the surgeons had discovered an occluded aorta then the procedure they performed was correct and within the standard of care.
On the agency issue, early in the trial plaintiff attempted to prove the relationship with UM based on the failure to produce a contract with the Trust. On questioning, however, Dr. Ramdev maintained that he had signed a contract with the Trust. On the fourth day of trial, UM produced the applicable contract. (UM explained that the contract had been found after a further search by Trust personnel.) Plaintiff objected to the admission of the contract. Recognizing its potential for prejudice, the judge offered plaintiff a mistrial, but plaintiff declined. The trial court allowed evidence of the contract to come in. The jury returned a verdict of no negligence by the surgeons, and a final judgment was entered in favor of UM.
Appellant contends she is entitled to a new trial due to the improper and prejudicial admission of the late-discovered evidence. She claims that introduction of this evidence mid-trial destroyed the credibility of her case and impermissibly bolstered the credibility of Dr. Ramdev. Her argument presumably goes to both the agency and liability issues, i.e. because the doctor was right about the existence of the contract, the jury was more likely to believe him as to the occluded aorta. UM initially argues that appellant waived her rights when she declined the offer of a mistrial. Alternatively, it would have this court affirm on harmless error grounds because of the existence of substantial independent evidence of liability. We are convinced that error, if any, in the admission of the objected-to evidence was harmless.
It is important to remember that the initial issue for the jury's consideration was whether or not the surgeons were negligent in their care and treatment of Adderly. Only if they found negligence, would the issue of agency need to be resolved. In light of the concession made by plaintiff's expert, the key question on liability was the condition of the aorta at the beginning of the surgery. Independent of Dr. Ramdev's testimony (whose credibility appellant claims was improperly bolstered), the jury was presented with Dr. Eton's testimony. He stated that he remembered a complete occlusion. Additionally, an operative note dictated by Dr. Roca, a resident assisting in the surgery, was introduced which described the aorta as “heavily calcified.” Although not overwhelming, this evidence could reasonably have been found by the jury to be sufficient proof of the absence of any negligence. Moreover, we are not persuaded by appellant's argument that the impermissible evidence bolstered Dr. Ramdev's credibility to such a significant degree. A jury should be able to appreciate the difference between testimony on a minor point such as the existence of an employment contract and the crucial facts surrounding what happened during the surgery.
We, therefore, affirm the judgment below.
Medical Malpractice-A jury awarded more than $2.5 million to a woman who claimed that she suffers 50% impairment of her breathing as a result of a surgeon's failure to timely detect a lung injury. The jury found that Dr. Anukware Ketosugbo failed to properly investigate symptoms that one of his patients developed soon after undergoing removal of an esophageal growth that was inhibiting her swallowing. Eight days later, Ketosugbo performed exploratory surgery that revealed a lung injury that occurred during the first surgery. However, during the intervening period, the patient, Amma Akwaboa, developed a lung hemorrhage that ultimately led to chronic obstructive pulmonary disease. The jury awarded $2,511,000 to Akwaboa and an additional $50,000 to her husband.Akwaboa v. Ketsugbo
Medical Malpractice- Two obstetricians have agreed to pay a total of $4.15 million to settle a lawsuit that was filed by a patient who claimed that a failed abortion resulted in the birth of a mentally disabled child. The plaintiff, Karen Sheppard, underwent a drug-induced abortion to avoid a dangerous pregnancy, but the procedure failed, and she ultimately gave birth to a son who suffers mental disabilities. She claimed that her son was harmed by the drug that was used in the abortion procedure, and she sued her treating obstetricians. The obstetricians contended that the boy can become a functioning member of society, but they ultimately agreed to the settlement, which includes $3.85 million for the boy and $300,000 for Sheppard's emotional distress.
Premises Liability-On Oct. 3, a fast food restaurant agreed to pay $2.75 million to a man paralyzed in a late night shooting. David Artis, 25, student, was with friends at a White Castle franchise in Newark when an argument broke out with another group of patrons. Artis struck one of them with a bottle and the altercation moved to the parking lot, where another man shot Artis in the spine, paralyzing him. Artis sued the restaurant's operator, White Castle Inc. for premises liability, alleging negligent security. The plaintiff counsel charged that White Castle failed to provide adequate security in a high-crime area during late-night hours. The defense claimed that Artis was an active participant in the shooting, responsible for his own injury.Artis v. White Castle Inc.
Construction Accident- On Sep. 21, a Middlesex County jury awarded a construction worker $995,000 for an on the job fall from height. On Aug. 19, 2002, plaintiff Wayne Orgonas, 30's, an ironworker for a subcontractor, was working at a Perth Amboy construction site. Orgonas fell 28 feet as he attempted to step from a ladder onto a beam. Orgonas sued the prime steel contractor, J.V. Palmonari Inc. of Milmay for negligence. His counsel alleged that J.V. should have but failed to provide safety nets or harnesses. The defense answered that it was not required to do so and that Orgonas was negligent in the manner in which he stepped off the ladder. The defense contended that Ogonas was wearing a harness but failed to put on an attachment that would have prevented the fall.Orgonas v. J.V. Palmonari Inc.
Car Accident-On Sep. 15, a Kings County jury awarded a man injured in a broadside vehicle accident $1,159,353. On Sept. 7, 2004, plaintiff Gustavo Morado, 46, a master welder, was driving to work in Corcoran. He was traveling through an intersection at approximately 55 mph when he was suddenly broadsided by a tractor trailer driven by Evelio Urias Lopez that had ignored the intersection's controlled stop. The force of the impact sent Morado's pickup off the road into a canal where he was trapped for over an hour. Morado sustained serious internal and leg injuries. Morado sued Lopez, his employer and the owner of the trailers for negligence. The defense did not contest liability.Morado v. Lopez
Motor Vehicle-On Sept. 26, an Orange County jury awarded $23,392,604 to a 13-year-old who suffered brain damage in a car wreck. On Feb. 7, 2005, plaintiff Cade Feitler, 13, was in the front passenger seat of a sedan with his mother and sister when Peter Infranca ran a red light, and the front of his SUV struck the right passenger side of Cade's vehicle. Cade fractured his skull and sustained traumatic brain injury. At trial, he was still unable to walk or talk. Plaintiffs' counsel argued that Infranca was acting in the scope of his employment because he was running errands related to his employment status. Defense counsel contended that Infranca's errands were personal and completely unrelated to his job.Feitler v. E.A. Pedersen Co.
Medical Negligence-A Philadelphia County jury on Aug. 11 awarded $5.01 million to a 336-lb. woman who fell out of her hospital bed after gastric bypass surgery. Plaintiff Diane Bugieda, 50, developed respiratory complications following the surgery and was placed in a medically-induced coma for one month. As she was being brought out of the coma, nurses moved her into an upright position, and, she alleged, then walked away without making sure she was oriented. Bugieda fell out of the bed and suffered right brachial plexus avulsion to the shoulder, in which the nerve is torn from the spine. She sued the Hospital of the University of Pennsylvania for medical malpractice. The hospital claimed Bugieda showed sufficient signs of awareness before the nurses raised her up.Bugieda v. Hospital of the University of PennsylvaniaAnimals- Jon Gordon on July 24 awarded $1.9 million to a woman who was mauled by two Great Danes that dragged her down from a tree as she tried to escape. Patti Adler, 52, suffered several bite wounds that required 300 stitches. She also fractured her wrist. The dogs, owned by Angela Antonick, dug a hole under their fence, making it possible to chase after Adler who was riding her bike in the neighborhood. Plaintiff's counsel noted that the dogs hadn't been fed in more than a month, and neighbors testified that they've seen the dogs frequently roam free. Adler also sued the property owner, Rose Filmore, but Gordon declined to assess damages against her because the dogs weren't on the property at the time of the attack, and she didn't own them.Adler v. Antonick
Boating Accidents- A Dade County jury on June 19 awarded $1.9 million to a man who was thrown to the deck of a speed boat cutting through rough seas. Roman Piloto, 40s, a construction company owner, sustained 28 fractures to his shin and tibial plateau. After not being able to put any weight on his leg for three months, an infection developed around his implanted hardware, which called for a third surgery. The defendants, Arnaldo Gomez and his company, Deep Impact Power Boats, failed to comply with court orders to hire counsel to represent the corporation, and Judge Ronald Freeman struck their pleadings. The case was tried to the jury on damages only.Piloto v. Deep Impact Power Boats Inc.
Negligent Security- A Palm Beach County jury on July 13 awarded $184,832 to a man beaten while playing what he thought was going to a friendly game of pool at Major's Tartan Pub in Stuart. Larry Demers, who's in his 20s, was struck several times in the head by an unknown man. He went home and in the middle of the night began to vomit before going into a coma. His lawyer argued Major's staff stood there and did nothing throughout most of the attack. The defendant defaulted and the trial proceeded on damages. Demers had metal plates placed into his skull along with screws, some of which protrude from his skin. He now has a horseshoe-shaped scar on his head. He came out of the coma and eventually made a full recovery.Demers v. Major's Tartan Corp.
Medical Malpractice- A jury declined to award damages to the family of a man who died of an aortic dissection several days after doctors pronounced him fit to be released from a hospital. The family of Stephen Goldberg alleged that his doctors failed to detect the dissection, mistakenly determining that Goldberg's severe gastrointestinal symptoms were products of food poisoning, rather than a symptom of reduced blood flow to his intestinal system. The doctors contended that the dissection must have occurred after Goldberg's release from the hospital. They noted that his intestinal system had returned to normal by the time of his autopsy and that he never reported any of the chest pain that would almost always accompany a dissection.Goldberg v. Staten Island University Hospital
Premises Liability- On July 17, following mediation, a housepainter who lost his thumb reached a settlement agreement for $275,000. On July 8, 2002 plaintiff Thomas Varelli, 36, was helping his friend Brian Gawrys cut down a pine tree on his property in Manchester. Varelli saw the tree falling towards Gawrys and, in an effort to save Gawrys, grabbed a supporting rope. His hand became tangled in the rope and, when it went taut, it ripped off Varelli's thumb. Varelli claimed that, as a business invitee to the home, Gawrys had a duty to warn him of any hazards and make his premises safe. He alleged that Gawrys professed to know how to properly cut down a tree. Gawrys claimed Varelli was only invited for coffee and volunteered to help cut down the tree.Varelli v. Gawrys
Transportation Accident- On Aug. 17, a Middlesex County jury awarded total damages to a plumber and his wife in the amount of $11.25 million. In Jan 2002, Paul Dolan, 42, was driving his minivan in New Jersey just off of the George Washington Bridge when a 22,000 pound cargo container, owned by Hapag-Lloyd America Corp., broke loose from a truck and crushed him. Dolan suffered serious lower-body injuries. Dolan moved to have the matter litigated under New York law, which holds the owners of cargo liable for acts of the drivers in securing it. Summary judgment was granted on the subject of liability and the case continued solely on damages.Dolan v. Hapag-Lloyd America
Medical Malpractice- An Erie County jury awarded a man $258,000 after a sponge was left in his abdomen during surgery. Plaintiff William VanGuilder, 41, suffered Chrone's disease and underwent surgery in March 2004 for the removal of a mass in his small intestine. Three months later, after suffering severe diarrhea and vomiting, VanGuilder was hospitalized and doctors discovered an 8-square-inch laparotomy sponge in his small intestine. He sued surgeon Mariano Loveranes and the Millcreek Community Hospital in Erie, alleging medical malpractice. The defendants argued that VanGuilder must have swallowed the sponge. The jury disagreed, allotting 60 percent liability to Loveranes and 40 percent to the hospital.VanGuilder v. Loveranes
Assault and Battery- Hanover Township has settled a negligence and civil rights suit brought by a man hit by a city police officer who was providing security at a Toby Keith concert in September 2003. Plaintiff Joseph Trone, a firefighter in his 30s, attended the concert with his 9-year-old son, who hoped to meet Keith after the concert. Defendant Jay Green, a police officer with the Township of Hanover who was guarding the gate, told the Trones that Keith had left and that they should go home. Trone, believing Green was lying, challenged Green to arrest him, which he did, but not before adding a kick to Trone's knee. Trone sued for false arrest, assault and battery and negligent training. The parties settled with no admission of liability for $180,000.Trone v. Township of Hanover
Medical Malpractice -A Philadelphia County jury on Aug. 11 awarded $5.01 million to a 336-lb. woman who fell out of her hospital bed after gastric bypass surgery. Plaintiff Diane Bugieda, 50, developed respiratory complications following the surgery and was placed in a medically-induced coma for one month. As she was being brought out of the coma, nurses moved her into an upright position, and, she alleged, then walked away without making sure she was oriented. Bugieda fell out of the bed and suffered right brachial plexus avulsion to the shoulder, in which the nerve is torn from the spine. She sued the Hospital of the University of Pennsylvania for medical malpractice. The hospital claimed Bugieda showed sufficient signs of awareness before the nurses raised her up.Bugieda v. Hospital of the University of PennsylvaniaCar Accident- An arbitration panel on June 8 awarded $450,000 to a couple injured in a rear-ender on a narrow and winding road. Kevin Roberts, 28, and Laura Roberts, 26, were rear-ended by Ester Hood whose brakes failed. The Roberts' sought underinsured motorist benefits from their carrier, Illinois Farmers Insurance Co. Mr. Roberts sustained a lumbar herniation and claimed that he couldn't return to work as a carpenter. Mrs. Roberts' suffered an annular tear that wasn't diagnosed until nine months later because she was pregnant at the time of the accident. The defense argued that Mr. Roberts could have returned to work within a year of the accident and Mrs. Roberts' had a preexisting degenerative condition.Roberts v. Hood
Negligent Security -A Knox County jury on May 22 awarded $1.05 million to the estate of a 19-year-old freshman who was beaten to death by a student in a glassed-in stairwell of the student union building. Andrea Racibozynki's parents sued the school for its negligent security, noting that the stairwell was poorly lit. Their lawyer also noted that the nearest security phone was broken, and there was no resident assistant or security guard on duty at 1:20 a.m. to hear the struggle before Clyde Best beat her to death because she wouldn't go to a party with him. After punching her until she was dazed and semi-conscious at, Best went to his dorm room in the building to get a brick to beat her some more. He told police the attack happened over a 10- to 15-minute period.Racibozynski v. Knox College
Motor Vehicle Accidents- Cook County and a defendant driver settled a suit for $6 million after an officer responding to an emergency killed a passenger in a left-turning car. Delia Grimmett, 41, was the passenger in a car driven by the other defendant, Margaret Petraski. Plaintiff's counsel argued that Petraski shouldn't have made the left turn right before Officer Deborah Thedos struck Petraski. Grimmett’s lawyer also argued that Thedos didn't use her flashing lights and siren, and was going at least 70 mph. Grimmett was ejected from the car. She is survived by her husband and their four children. Cook County paid $5.75 million and Petraski's insurer tendered its $250,000 policy.Estate of Grimmett v. PetraskiMedical Malpractice- A woman and her minor child who suffered Erb's and Klumpke's palsies after delivery will receive over $4 million after a Los Angeles jury returned a verdict of medical malpractice against one doctor and the plaintiffs settled with another in July. Plaintiffs Sandra Bojorquez and her son Jesus Saavedra sued OB-GYN Chastity Jennings-Nunez, alleging that the doctor failed to properly treat Bojorquez's gestational diabetes. They also sued Ronald Johnson, who delivered the baby, alleging he failed to utilize maneuvers required by the standard of care to safely deliver a shoulder dystocia. The defendant doctors denied the allegations; the jury ordered Jennings-Nunez to pay over $1 million, and Johnson then settled for $1 million. The lifetime payout on the award includes an annuity.Saavedra v. JohnsonBoat Accidents- Freeport charter-boat company settled prior to trial on July 12 with an Upshur County man for $300,000. In July of 2005, a 95-foot vessel owned by Fling Charters Inc. collided with Vernon Kingston, 57, while he was drift fishing in his smaller 25-foot boat in the Gulf of Mexico, about 30 miles southeast of Freeport. Kingston claimed that the larger vessel was traveling at about 13 knots and never slowed or attempted any evasive action. Defense counsel challenged the extent of Kingston's injuries, claiming that he continued to fish for the remainder of the day following the incident.Kingston v. Fling Charters Inc
Workplace Safety - A Fort Bend County jury on July 18 found that a driver wasn’t liable for hitting a low-hanging steel cable that injured the worker who was stringing it to a utility pole. Charles Riddle, 29, sustained lacerations to his arm and face when William Lowery’s van hit the quarter-inch cable that Riddle was holding while up in a cherry picker. As Riddle took up the slack, the cable—it had been laying across the street—lifted off the ground, and Lowery hit it. Riddle claimed that Lowery should have seen the cable and avoided it. Lowery’s attorney argued that Riddle, who was in charge of the work crew, should have arranged for a warning to motorists, such as a flagman or signs.Riddle v. LoweryProduct Liability-Defective Airplance Engine- A jury awarded a total of $1,975,000 to the family of two men who died when a small private jet crashed into power lines near York County Airport. The men's families sued the manufacturer of the plane's engine, Austria-based Bombardier-Rotax GmbH. They alleged that the plane crashed because of a known-but-unaddressed engine defect that caused a sudden stoppage. They also contended that the danger should have been fully disclosed, but that Bombardier merely created a warning sticker that was applied to the engine, where it could not be easily seen by the plane's pilots and passengers. Bombardier argued that the crash was a product of pilot error, but the jury found otherwise.Simeone v. Bombardier-Rotax GmbH
Medical Malpractice - A jury found that Children's Hospital of Philadelphia and two of its doctors were liable for a stroke that caused severe mental retardation of a 1-year-old patient. The child, Daniel Keenan, now 5, was admitted to the hospital for treatment of chronic seizure disorder. During the treatment, he developed a blood clot that led to his stroke. Daniel's parents argued that Daniel's doctors did not promptly administer a clot-busting agent and that they failed to promptly diagnose the stroke. The defendants argued that Daniel's stroke arose from his seizure disorder, but the jury did not accept that argument. It found that Daniel's damages totaled $30 million.Keenan v. Children's Hospital of PhiladelphiaInsurance -- Personal injury protection -- Attorney's fees -- Offer of judgment -- In a suit for benefits under a personal injury protection policy, an insurer may recover attorney's fees pursuant to the offer of judgment statute -- A suit for PIP benefits is a “civil action for damages” -- Validity of offer -- Insurer's proposal for settlement, which stated that it would be a full and final satisfaction and settlement of any and all of insured's claims and causes of action in, or arising out of the case, and provided that insured would be required to execute a “general release,” in favor of insurer, “which will be expressly limited to all claims, causes of action, etc., that have accrued through the date,” of insured's acceptance of the proposal, was too ambiguous to satisfy rule 1.442 -- Settlement proposals must clarify which of an offeree's outstanding claims against the offeror will be extinguished by any proposed release -- Because insurer's settlement proposal failed to eliminate ambiguity regarding insured's outstanding uninsured motorist clam, it cannot support award of attorney's feesSTATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. SHANNON NICHOLS, Respondent. Supreme Court of Florida. Case No. SC03-1483. SHANNON NICHOLS, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. Case No. SC03-1653. June 1, 2006. Two Cases Consolidated: Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance. Fifth District - Case No. 5D01-3851 (Orange County). Counsel: Kenneth P. Hazouri of de Beaubien, Knight, Simmons, Mantzaris and Neel, LLP, Orlando, for Petitioner/Respondent. Thomas P. Hockman of Law Offices of Hockman and Hockman, Winter Park, for Respondent/Petitioner. Philip D. Parrish, P.A., Miami, on behalf of the Academy of Florida Trial Lawyers, as Amicus Curiae.(CANTERO, J.) In this case, we decide whether, in a suit for benefits under a personal injury protection policy, an insurer may ever recover attorney's fees pursuant to the offer of judgment statute. We review Nichols v. State Farm Mutual, 851 So. 2d 742 (Fla. 5th DCA 2003), which held that an insurer could recover such fees but certified to us a question of great public importance. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; State Farm Mut. Auto. Ins. Co. v. Nichols, 913 So. 2d 598 (Fla. 2005) (granting review). As we explain below, we agree with the district court in this case, as well as the other district courts that have considered this issue, and hold that a suit for PIP benefits is a “civil action for damages” to which the offer of judgment statute applies. We also agree with the district court, however, that in this case the insurer's offer did not satisfy the requirements of Florida Rule of Civil Procedure 1.442. We therefore approve the district court's decision in full.I. FACTSAfter suffering injuries in a car accident in 1996, Shannon Nichols requested personal injury protection benefits from her insurer, State Farm. While agreeing to pay her early medical bills, State Farm requested that Nichols undergo an independent medical examination to determine the need for further treatment. Despite repeated rescheduling, she ultimately failed to attend the exam. Under the PIP statute, “[i]f a person unreasonably refuses to submit to an examination, the personal injury protection carrier is no longer liable for subsequent personal injury protection benefits.” § 627.736(7)(b), Fla. Stat. (1999). Relying on the statute, State Farm refused to pay any additional benefits.Nichols filed a complaint against State Farm in county court, alleging breach of their insurance contract. While the PIP suit was pending, State Farm served Nichols with a proposal for settlement in the amount of $250. As a condition of the settlement, however, Nichols would have been required to “execute a General Release in favor of State Farm, which will be expressly limited to all claims, causes of action, etc., that have accrued through the date of Nichols's acceptance of this Proposal.” At the time, she also had an outstanding uninsured motorist (“UM”) claim arising from the same accident, which later settled for $13,000. Fearing that the release would extinguish both the PIP claim and the UM claim, Nichols rejected the offer. State Farm later claimed that it did not intend for the release to extinguish the UM claim.At trial, the jury found that Nichols unreasonably refused to submit to a medical examination, which meant she was not entitled to any recovery. State Farm therefore requested attorney's fees and costs under the offer of judgment statute. See § 768.79, Fla. Stat. (1999). The county court initially denied the request, concluding that the offer of judgment statute does not apply to PIP suits. Only days later, however, the Third District held that the offer of judgment statute does apply to such suits. See U.S. Sec. Ins. Co. v. Cahuasqui, 760 So. 2d 1101 (Fla. 3d DCA 2000), review dismissed, 796 So. 2d 552 (Fla. 2001). Upon reconsideration, the county court awarded $23,199 to State Farm. It also certified to the Fifth District a question of great public importance, asking whether the offer of judgment statute applies to PIP suits.The Fifth District answered yes. Nichols, 851 So. 2d at 744. Applying the statute's plain language, which encompasses “any civil action for damages filed in the courts of this state,” § 768.79(1), Fla. Stat. (1999), the district court concluded that the Legislature “clearly and unambiguously” intended for the statute to cover PIP suits. Nichols, 851 So. 2d at 745. While acknowledging “thoughtful policy arguments” for the opposite result, the district court advised that they would be “more appropriately addressed to the Legislature.” Id.Judge Sawaya dissented in part. He argued that “the Legislature never intended a suit to recover PIP benefits to be an action for damages under section 768.79.” Id. at 747 (Sawaya, J., concurring in part and dissenting in part). The purpose of the PIP system, he wrote, was to guarantee swift payment to insureds without regard to fault. In his view, “application of section 768.79 to PIP cases, with its inherent uncertainties and risks, has completely abrogated the security and the assurance that injured insureds were promised by the Legislature through the No-Fault Act.” Id. at 750. He joined the majority, however, in certifying to us a question of great public importance: “May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?” Id. at 747.On appeal, Nichols raised another issue: whether State Farm's settlement proposal satisfied Florida Rule of Civil Procedure 1.442, which demands that such proposals “state with particularity any relevant conditions” and “state with particularity all nonmonetary terms.” Fla. R. Civ. P. 1.442(c)(2)(C)-(D). She argued that State Farm's offer was too ambiguous because it arguably required her to release not only her PIP claim, but also her outstanding UM claim. Nichols, 851 So. 2d at 745. At the attorney's fees hearing, she even accused State Farm of attempting in bad faith to kill two claims with one release. Id. But State Farm, professing to have been “unaware of the existence of the UM claim at the time,” testified “that had the proposal for settlement been accepted, [it] would not have required that the release include the UM claim.” Id. at 745-46. The trial court accepted State Farm's explanation and deemed the settlement proposal valid under rule 1.442. Id. at 746.The Fifth District concluded, however, that because the scope of the release “could not be determined without resort to clarification or judicial interpretation,” id., the settlement proposal was too ambiguous to satisfy rule 1.442. According to the district court, “[t]he terms and conditions of the proposal should be devoid of ambiguity, patent or latent.” Id. It therefore reversed the award of attorney's fees to State Farm.Both parties petitioned us for review. Nichols relied on the certified question, whereas State Farm alleged express and direct conflict with other district court decisions regarding rule 1.442's particularity requirement. We granted review based on the certified question and consolidated the cases. State Farm, 913 So. 2d at 598. We now approve the Fifth District's reasoning on both issues, which we analyze separately.II. THE CERTIFIED QUESTIONThe certified question asks whether the offer of judgment statute applies to PIP suits. The Fifth District answered yes, Nichols, 851 So. 2d at 745, as have the other two district courts to consider the issue. See Tran v. State Farm Fire & Cas. Co., 860 So. 2d 1000 (Fla. 1st DCA 2003); Cahuasqui, 760 So. 2d at 1101. Two of those cases, however, produced dissents. See Nichols, 851 So. 2d at 747 (Sawaya, J., concurring in part and dissenting in part); Cahuasqui, 760 So. 2d at 1107 (Fletcher, J., dissenting). We agree with the three district courts and hold that the offer of judgment statute applies to PIP suits. To explain our decision, we discuss (A) whether the offer of judgment statute includes PIP suits, (B) whether the separate attorney's fees provision in the PIP statute precludes application of the offer of judgment statute, and finally (C) whether applying the offer of judgment statute to PIP suits would render unconstitutional the entire PIP system.A. The Offer of Judgment StatuteThe first issue is whether the offer of judgment statute applies to PIP suits. The statute provides:In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him . . . from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award.§ 768.79(1), Fla. Stat. (1999) (emphasis added). The district courts, emphasizing the plain meaning of the statute, have consistently held that a PIP suit is a “civil action for damages.” See Nichols, 851 So. 2d at 745; Cahuasqui, 760 So. 2d at 1104. But Nichols maintains that her suit is better characterized as an action for “benefits” or “security.”We find this characterization to be a distinction without a difference. The purpose of a PIP suit is to recover damages for breach of an insurance contract. In fact, in Nichols's initial complaint, and again in her amended complaints, she expressly referred to her suit as “an action for damages.” While the contractual breach may consist of a failure to pay insurance “benefits” or “security,” the plaintiff, if successful, nevertheless will receive court-ordered compensation for her loss, which is the very definition of damages. See, e.g., Black's Law Dictionary 416 (8th ed. 2004) (defining damages as “[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury”). As one court has said, “[t]he right to damages may arise under tort law; it may arise under contract law; it may arise under property law. If the party seeks damages from another party, then the claim is covered by section 768.79's broad phrase, ‘civil action for damages.' ” Beyel Bros. Crane & Rigging Co. of S. Fla. v. Ace Transp., Inc., 664 So. 2d 62, 64 (Fla. 4th DCA 1995). Nothing in the offer of judgment statute exempts claims for contractual damages.We have long recognized that, where a statute is free from ambiguity, we must follow its plain meaning. As we have explained, “[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Clines v. State, 912 So. 2d 550, 555-56 (Fla. 2005) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). This is one of those times. The phrase “any civil action for damages” unambiguously includes suits to recover damages for breach of a PIP insurance contract. We therefore conclude that the offer of judgment statute encompasses such cases.B. The PIP StatuteHaving determined that a PIP suit is a “civil action for damages” covered by the offer of judgment statute, we now consider whether the separate attorney's fees provision in the PIP statute precludes application of other attorney's fees provisions. In considering this issue, we note the “long-recognized principle of statutory construction that where two statutory provisions are in conflict, the specific statute controls over the general statute.” State v. J.M., 824 So. 2d 105, 112 (Fla. 2002) (citing State ex rel. Johnson v. Vizzini, 227 So. 2d 205, 207 (Fla. 1969)). Moreover, the chapter containing the offer of judgment statute expressly states that “[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” § 768.71(3), Fla. Stat. (1999). Thus, if the offer of judgment statute conflicts with the attorney's fees provision in the PIP statute, the latter controls. We conclude, however, that they do not conflict.The attorney's fees provision in the PIP statute, entitled “Applicability of provision regulating attorney's fees,” states that “[w]ith respect to any dispute under the provisions of [the PIP statute] between the insured and the insurer, the provisions of s. 627.428 shall apply.” § 627.736(8), Fla. Stat. (1999). The cross-referenced statute, section 627.428, provides:Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.§ 627.428(1), Fla. Stat. (1999). In other words, a prevailing insured, but not a prevailing insurer, is entitled to attorney's fees.Nichols argues that because section 627.428 only authorizes attorney's fees for insureds, and because it is the only attorney's fees provision incorporated into the PIP statute, it implicitly precludes courts from awarding attorney's fees to PIP insurers under any other provision, including the offer of judgment statute. She emphasizes our decision in Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420 (Fla. 1994), which explained that section 627.428 “is a one-way street offering the potential for attorneys' fees only to the insured or beneficiary” in order “to discourage insurers from contesting valid claims and to reimburse successful policy holders forced to sue to enforce their policies.” Id. at 421.Even Danis recognized, however, that the “one-way street” under section 627.428 cannot be used as a detour around settlement negotiations. The specific issue in that case was what it meant for an insured to “prevail” under section 627.428. We held that an insured prevails only when the insured “obtain[s] a judgment greater than any offer of settlement previously tendered by the insurer.” Id. In a later case, Scottsdale Insurance Co. v. DeSalvo, 748 So. 2d 941 (Fla. 1999), we clarified that the “judgment” includes the insured's damages plus any attorney's fees, taxable costs, and prejudgment interest incurred before the insurer's offer.Together, Danis and DeSalvo drew a clear line between the pre-offer and post-offer periods. Unless and until the insurer offers to pay the insured's damages plus attorney's fees, costs, and interest, the “one-way street” under section 627.428 entitles the insured to attorney's fees. But once such an offer is made and rejected, the “one-way street” ends. The insured, having turned down the full amount she is owed, cannot claim the protection of section 627.428.The question here is whether the insurer, having made an offer that eliminates the insured's entitlement to further attorney's fees under section 627.428, can recover its own fees if it meets the conditions of the offer of judgment statute. Neither Danis nor DeSalvo resolved that question. Recently, however, we did clear the way for application of the offer of judgment statute to insurance cases by extending a crucial part of the Danis/DeSalvo reasoning to the offer of judgment statute. In White v. Steak & Ale of Florida, Inc., 816 So. 2d 546 (Fla. 2002), we held that the term “judgment” under the offer of judgment statute must be defined -- as it is under section 627.428 -- to include not only the plaintiff's damages award, but also any attorney's fees, taxable costs, and prejudgment interest to which the plaintiff would have been entitled when the offer was made. Id. at 551. “It is this judgment to which the offer must be compared in determining whether to award fees and costs” under both the offer of judgment statute and section 627.428. Id. (citing DeSalvo, 748 So. 2d at 944 n.3). We explained that “[a]lthough Danis and [DeSalvo] involved an award of attorneys' fees under section 627.428, we see no reason why this rationale should not apply equally to offers or demands made under section 768.79(6).” Id. at 551 n.5.Because we have uniformly defined the term “judgment” under both section 627.428 and the offer of judgment statute, the two statutes can be applied simultaneously to PIP cases without creating conflict. The following chart illustrates how they interact:If the judgment is:The insured receives:The insurer receives:No liabilityNo feesPost-offer fees under the offer of judgment statute75 percent or less of insurer's offerPre-offer fees under section 627.428Post-offer fees under the offer of judgment statuteMore than 75 percent of insurer's offer, but not more than 100 percentPre-offer fees under section 627.428No feesMore than insurer's offerAll fees under section 627.428No feesThe most complex situation is where the insured recovers some damages, but the judgment is only 75 percent or less of the defendant's offer. (This is not such a case, because Nichols recovered nothing.) In that situation, both parties have a statutory entitlement to attorney's fees. Even then, however, the two statutes will not conflict: under section 627.428 the insured will be awarded attorney's fees incurred before the offer, and under the offer of judgment statute the insurer will be awarded fees incurred after the offer.Given the lack of conflict between the statutes, the question becomes whether the expression of one thing (i.e., attorney's fees for insureds under sections 627.428 and 627.736) implies the exclusion of another (i.e., attorney's fees under the offer of judgment statute). As one court noted in holding that the offer of judgment statute applied in PIP cases, “[t]his rule that the inclusion of one thing means the exclusion of another, however, does not mean that the application of one precludes the additional application of another.” Cahuasqui, 760 So. 2d at 1105.In cases involving other types of insurance, we have not interpreted section 627.428 as precluding the application of other attorney's fees provisions. To the contrary, we have authorized the application of the offer of judgment statute in an underinsured motorist case, even though it also fell within the scope of section 627.428. See Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 223 (Fla. 2003). The district courts, too, have applied the offer of judgment statute to insurance cases, including those involving property insurance, see Pa. Lumbermens Mut. Ins. Co. v. Sunrise Club, Inc., 711 So. 2d 593, 594 (Fla. 3d DCA 1998), liability insurance, Rabatie v. U.S. Sec. Ins. Co., 581 So. 2d 1327 (Fla. 3d DCA 1989), and uninsured motorist benefits. See Weesner v. United Servs. Auto. Ass'n, 711 So. 2d 1192, 1194 (Fla. 5th DCA 1998); Allstate Ins. Co. v. Manasse, 715 So. 2d 1079, 1082 (Fla. 4th DCA 1998); Allstate Ins. Co. v. Silow, 714 So. 2d 647, 651 (Fla. 4th DCA 1998); State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874, 876 (Fla. 2d DCA 1997). One court has specifically rejected the argument that in an uninsured motorist case section 627.428 precludes an award of attorney's fees to the insurer under the offer of judgment statute. Weesner, 711 So. 2d at 1194.Nichols attempts to distinguish PIP suits from these other insurance cases on the ground that section 627.428 applies to PIP suits through a separate provision in the PIP statute, which incorporates it by reference. See § 627.736(8), Fla. Stat. (1999). According to Nichols, the Legislature's reason for including this separate provision must have been to foreclose the application of any other attorney's fees provisions to PIP suits. Otherwise, she argues, the provision would be redundant with section 627.428.We find this argument unpersuasive. If the Legislature had enacted section 627.736(8) for the sole purpose of excluding all other attorney's fees provisions in PIP suits, then presumably it would have used exclusionary language, rather than the inclusive language it used. The words in the statute are the best guide to legislative intent. Here, section 627.736(8) gives no clue that the Legislature intended to prohibit application of the offer of judgment statute.C. Access to CourtsNichols argues that applying the offer of judgment statute to PIP suits will deny insureds access to courts and thus render the entire PIP system unconstitutional. Article I, section 21 of the Florida Constitution provides that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” We hold that even with the addition of the offer of judgment statute, the PIP statute withstands constitutional scrutiny.We first considered the PIP statute's constitutionality in Kluger v. White, 281 So. 2d 1 (Fla. 1973). We interpreted the access-to-courts provision to mean that the Legislature cannot abolish a traditional common-law right of recovery “without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.” Id. at 4. Applying this standard, we held unconstitutional the portion of the PIP statute that provided an exemption from tort liability for certain property damage. Id. at 5. We cautioned, however, that if insurance had been made compulsory for property damage, the provision might have been upheld. Id.One year after Kluger, we decided that the personal injury portion of the PIP statute, which does make insurance compulsory, “provides a reasonable alternative to the traditional action in tort” and therefore complies with the access-to-courts provision. See Lasky v. State Farm Ins. Co., 296 So. 2d 9, 14 (Fla. 1974). We reasoned that, under the PIP system, “[i]n exchange for his previous right to damages for pain and suffering . . . with recovery limited to those situations where he can prove that the other party was at fault, the injured party is assured of recovery of his major and salient economic losses from his own insurer.” Id. We emphasized that the insured can recover something “even where he himself is at fault,” and that normally there will be “speedy payment” rather than prolonged litigation. Id.As the PIP statute has been amended over the years, we have considered new challenges to its constitutionality. The most prominent example is Chapman v. Dillon, 415 So. 2d 12 (Fla. 1982). In the eight years between Lasky and Chapman, the Legislature substantially reduced the percentage of medical expenses and lost wages the insured may recover. Id. at 16. Deciding that the amendments were “reasonable attempts by the legislature to correct some of the practical problems which the no-fault law had posed,” we again upheld the statute. Id. Although the changes meant that insureds would not necessarily recover all their economic losses, we explained that full recovery was not essential to the outcome in Lasky; “[i]nstead the crux in Lasky was that all owners of motor vehicles were required to purchase insurance which would assure injured parties recovery of their major and salient economic losses.” Id. at 17. We determined that the statutory amendments “have not fundamentally changed this essential characteristic of the no-fault law.” Id.The question here is whether allowing PIP insurers to recover attorney's fees under the offer of judgment statute (enacted after Lasky and Chapman, see ch. 86-160, § 58, Laws of Fla.) would fundamentally change the essential characteristics of the PIP system and thereby deny access to courts. The only case in which we have analyzed an attorney's fees provision under the access-to-courts provision is Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). There, we considered whether section 768.56, Florida Statutes (1981), which provided attorney's fees for the prevailing party in medical malpractice cases, violated the Florida Constitution. We held it did not, explaining:The assessment of attorney fees against an unsuccessful litigant imposes no more of a penalty than other costs of proceedings which are more commonly assessed. . . . The statute may encourage an initiating party to consider carefully the likelihood of success before bringing an action, and similarly encourage a defendant to evaluate the same factor in determining how to proceed once an action is filed. We reject the argument that section 768.56 so deters the pursuit of medical malpractice claims that it effectively denies access to the courts to either party in malpractice actions. We find that an award of attorneys fees to the prevailing party is “a matter of substantive law properly within the aegis of the legislature,” in accordance with the long-standing American Rule adopted by this Court. See Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 504 (Fla. 1982). As difficult as the resulting application of this statute may be in certain cases, we conclude that section 768.56 is constitutional.Id. at 1149 (citations omitted). As this passage makes clear, fee-shifting statutes generally do not deny access to courts. Id.We recognize that the PIP statute is unique. It expressly abolished a traditional common-law right by limiting the recovery available to car accident victims. In exchange, the statute made PIP insurance compulsory and allowed recovery regardless of fault. As we have noted, “the purpose of the no-fault statutory scheme is to ‘provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.' ” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683-84 (Fla. 2000) (quoting Gov't Employees Ins. Co. v. Gonzalez, 512 So. 2d 269, 271 (Fla. 3d DCA 1987)). This benefit balances the restrictions on recovery, making the PIP statute a reasonable alternative to the traditional tort action.Applying the offer of judgment statute to PIP suits will not upset this balance. Insurers are entitled to attorney's fees only in two limited circumstances: (1) where the insured recovers nothing at trial, as happened in this case; and (2) where the insured rejects an offer that turns out to be at least one-third greater than the damages awarded at trial, when added to any attorney's fees, taxable costs, and prejudgment interest that the insured accumulated before the offer. In other words, for the offer of judgment statute to apply, the plaintiff either must have a very weak case, or must reject a very generous offer. Encouraging plaintiffs to settle in those circumstances, rather than pursue needless litigation, “is entirely consistent with the intent of the no-fault legislation of relieving our overburdened court system.” Cahuasqui, 760 So. 2d at 1105. We therefore hold that application of the offer of judgment statute to PIP suits does not render the PIP statute constitutionally infirm.III. THE PARTICULARITY REQUIREMENTThe remaining issue is whether State Farm's settlement proposal satisfied the particularity requirement of Florida Rule of Civil Procedure 1.442. The rule requires that settlement proposals “state with particularity any relevant conditions” and also “state with particularity all nonmonetary terms.” Fla. R. Civ. P. 1.442(c)(2)(C)-(D). As the district court noted below, “[t]his requirement of particularity is fundamental to the purpose underlying the statute and rule. A proposal for settlement is intended to end judicial labor, not create more.” Nichols, 851 So. 2d at 746.The Fifth District decided that the language requiring Nichols to sign a general release was too ambiguous to satisfy rule 1.442. Nichols, 851 So. 2d at 746. Accordingly, it reversed the trial court's award of attorney's fees under the offer of judgment statute. State Farm now challenges the Fifth District's ruling, claiming it conflicts with other district court decisions. We exercise our discretion to review the issue. See Savoie v. State, 422 So. 2d 308, 312 (Fla. 1982) (holding that “once this Court has jurisdiction of a cause, it has jurisdiction to consider all issues appropriately raised in the appellate process”). As explained below, we conclude that State Farm's settlement proposal failed to eliminate ambiguity regarding Nichols's outstanding UM claim and thus cannot support an award of attorney's fees.As a threshold matter, we must determine whether a general release qualifies as one of the “relevant conditions” or “nonmonetary terms” of a settlement proposal, which must be described with particularity under rule 1.442. In this case, the Fifth District determined that a release is a condition and a nonmonetary term. See Nichols, 851 So. 2d at 746. Most district courts agree. See, e.g., 1 Nation Tech. Corp. v. A1 Teletronics, Inc., 924 So. 2d 3, 6 (Fla. 2d DCA 2005); Dryden v. Pedemonti, 910 So. 2d 854, 856 (Fla. 5th DCA 2005); Palm Beach Polo Holdings, Inc. v. Vill. of Wellington, 904 So. 2d 652, 653 (Fla. 4th DCA 2005); Sink v. Emerald Hill Owners Ass'n, 903 So. 2d 1047, 1048 (Fla. 1st DCA 2005); Boyd v. Nationwide Mut. Fire Ins. Co., 890 So. 2d 1240, 1242 (Fla. 4th DCA 2005); Swartsel v. Publix Super Mkts., Inc., 882 So. 2d 449, 453 (Fla. 4th DCA 2004); Hales v. Advanced Sys. Design, Inc., 855 So. 2d 1232, 1233 (Fla. 1st DCA 2003).In an earlier case, however, the Third District held that the releases and dismissal required by a settlement proposal “were not ‘conditions' of the settlement, but rather mechanical and legally inconsequential means of effecting it. They thus should be regarded as mere surplusage, the existence of which should not affect substantial rights.” Earnest & Stewart, Inc. v. Codina, 732 So. 2d 364, 366 (Fla. 3d DCA 1999). A few decisions, mostly from the Third District, have expressed this view. See Delpa, Inc. v. Martinez, 878 So. 2d 455, 455 (Fla. 3d DCA 2004); Gulf Coast Transp., Inc. v. Padron, 782 So. 2d 464, 465 (Fla. 2d DCA 2001); Kaplan v. Goldfarb, 777 So. 2d 1208, 1208 (Fla. 3d DCA 2001).Applying the plain meaning of rule 1.442, we agree with those courts that have treated releases as conditions or nonmonetary terms that must be described with particularity. A “condition” is traditionally defined as “a stipulation or prerequisite in a contract, will, or other instrument, constituting the essence of the instrument.” Black's Law Dictionary 312 (8th ed. 2004). A “term” is defined more broadly as “a contractual stipulation.” Id. at 1509. We think it clear that when an offeror insists that an offeree sign a general release, the release becomes a stipulation or prerequisite of the contract. Even if the release does not constitute the essence of the settlement proposal -- and thus a condition under subdivision (c)(2)(C) of the rule -- at the very least it qualifies as a nonmonetary term under subdivision (c)(2)(D).Next we consider what degree of particularity the rule requires. Some courts have demanded “that an offeror state all the terms of . . . any ‘general release' or, instead, attach a copy of the actual documents themselves to the offer.” Swartsel, 882 So. 2d at 453 (emphasis added). In this case, however, the Fifth District interpreted the rule as giving offerors the option of including “either the proposed language of the release or a summary of the substance of the release.' ” Nichols, 851 So. 2d at 746; see also Palm Beach Polo, 904 So. 2d at 653 (following Nichols); Boyd, 890 So. 2d at 1242 (requiring only a summary “sufficient to apprise [the offeree] of its terms”).We agree that a summary of the proposed release can be sufficient to satisfy rule 1.442, as long as it eliminates any reasonable ambiguity about its scope. As the Second District recently explained:The rule intends for a proposal for judgment to be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions. Furthermore, if accepted, the proposal should be capable of execution without the need for judicial interpretation. Proposals for settlement are intended to end judicial labor, not create more.Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002) (citation omitted). We recognize that, given the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree's decision, the proposal will not satisfy the particularity requirement.We caution that rule 1.442 is not intended to revolutionize the language used in general releases. Traditionally, general releases have included expansive language designed to protect the offeror from unforeseen developments or creative maneuvering by the other party. Such language can be sufficiently particular to satisfy rule 1.442. For example, in Board of Trustees of Florida Atlantic University v. Bowman, 853 So. 2d 507 (Fla. 4th DCA 2003), the Fourth District concluded that the language in a general release, “even though expansive, is typical of other general releases and is clear and unambiguous.” Id. at 509. The rule aims to prevent ambiguity, not breadth.State Farm's settlement proposal was too ambiguous to satisfy rule 1.442. The proposal stated, at the outset, that it would be “a full and final satisfaction and settlement of any and all of Nichols's claims and causes of action in, or arising out of, the above-styled case.” Then it provided that Nichols would be required to “execute a General Release in favor of State Farm, which will be expressly limited to all claims, causes of action, etc., that have accrued through the date of Nichols's acceptance of this Proposal.” At the time of the offer, Nichols not only had a pending PIP claim against State Farm, but also a UM claim arising from the same accident and of greater value. Although that claim was not technically “in . . . the above-styled case,” it could have been viewed as a claim “arising out of . . . the above-styled case,” because it arose from the same set of facts. State Farm's use of the broad phrase “all claims, causes of action, etc.” exacerbated this ambiguity.The district courts have consistently held, and we agree, that settlement proposals must clarify which of an offeree's outstanding claims against the offeror will be extinguished by any proposed release. See, e.g., Dryden, 910 So. 2d at 856-57 (holding that the description of a general release was “not as clear and as certain as it should be,” because it “could have been found . . . to have extinguished” additional claims); Palm Beach Polo, 904 So. 2d at 653 (holding that “the offer was legally deficient because plaintiff's acceptance could have extinguished other pending unrelated claims”); Morgan v. Beekie, 879 So. 2d 110, 111 (Fla. 5th DCA 2004) (holding that an offer “cannot be a basis for an award of attorney's fees because it was both ambiguous and failed to make it clear that it was solely for personal injuries when the settlement of the property damage claim had not yet been fully consummated”). Because State Farm's offer failed to do so, it is invalid under rule 1.442 and cannot support an award of attorney's fees under the offer of judgment statute.IV. CONCLUSIONWe hold that the offer of judgment statute applies to PIP suits. In this case, however, State Farm's offer of judgment was too ambiguous to satisfy Florida Rule of Civil Procedure 1.442. We therefore approve in full the district court's decision reversing the award of attorney's fees.It is so ordered. (PARIENTE, C.J., and WELLS, LEWIS, and BELL, JJ., concur. ANSTEAD, J., concurs in result only with an opinion, in which QUINCE, J., concurs.)__________________(ANSTEAD, J., concurring in result only.) While I agree with the majority as to the ultimate outcome, I cannot agree with the majority's analysis or conclusion as to the use of the offer of judgment statute to circumvent the Legislature's clear intention to limit the entitlement to attorney's fees in PIP actions to the insured-claimant. By applying a broader and more general statute on fees the majority opinion has essentially eviscerated the specific legislative intent on fees, as well as fundamentally undermining the legislative scheme to assist Florida citizens in the collection of PIP benefits. One can only hope that the Legislature will recognize that its work has been undone, and act promptly to restore the balance of rights of citizen-insureds in their dealings with insurance companies who have now been armed with a powerful new economic weapon to discourage insureds from litigating legitimate claims.Because I agree with the dissenting opinion of Judge Sawaya on this issue, I quote that opinion here and endorse its analysis:I concur with the majority that the order awarding attorney's fees must be reversed. However, I respectfully disagree that the offer of judgment statute found in section 768.79, Florida Statutes, applies to PIP cases. In my view, application of section 768.79 to PIP cases would completely thwart and circumvent the purposes of the Florida Motor Vehicle No-Fault Law [n.1] (the No-Fault Act) and PIP benefits. Moreover, I believe that the Legislature never intended a suit to recover PIP benefits to be an action for damages under section 768.79. Although I concur that this issue should be certified to the Florida Supreme Court, I believe that the question certified should be rephrased as follows to reflect the true nature of a suit to recover PIP benefits and answered in the negative:May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action brought by its insured to recover personal injury protection benefits under the insurance policy issued to the insured?[n.1] §§ 627.730-.7405, Fla. Stat. (2001).Application of the Offer of Judgment Statute Would Circumvent the Purposes of the No-Fault Law and Pip Benefits In order to properly determine whether the offer of judgment statute found in section 768.79, Florida Statutes (2001), applies to PIP cases, it is necessary to start with the firmly established rule that “[l]egislative intent, as always, is the polestar that guides a court's inquiry under the Florida No-Fault Law . . . .” United Auto Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001). In my view, application of section 768.79 to PIP cases would completely circumvent and thwart the purposes of the No-Fault Act and the specific provisions relating to PIP benefits found in section 627.736. Therefore, it is clear to me that the Legislature certainly did not intend for section 768.79 to apply to PIP cases.The Florida Legislature enacted the No-Fault Act to “provide for medical, surgical, funeral, and disability insurance benefits without regard to fault” and to limit “the right to claim damages for pain, suffering, mental anguish, and inconvenience.” § 627.731, Fla. Stat. (2001). In order to accomplish this objective, section 627.736(1) requires that every owner of a motor vehicle obtain motor vehicle liability insurance that provides “personal injury protection . . . for loss sustained . . . as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle . . . .” (Emphasis added). In exchange for abrogation of the right of the injured party to sue the tortfeasor for damages for pain, suffering, mental anguish, and inconvenience, the injured party is entitled to receive protection in the form of PIP benefits, which are limited to the following: eighty percent of all reasonable medical expenses so the insured will have access to necessary medical care and his or her medical providers will be assured of prompt payment; sixty percent of disability benefits so the insured and his or her family will have access to necessary funds for family support to replace the income lost as a result of any debilitating injury suffered by the insured; and certain death benefits to ensure prompt payment of necessary funeral expenses. § 627.736(1), Fla. Stat. (2001).Because the injured insured is statutorily prohibited from recovering these costs from the tortfeasor whose wrongful conduct caused the injury or death, he or she is relegated to payment of these necessary costs from his or her insurance carrier unless the statutorily-imposed threshold of permanency is established. § 627.737, Fla. Stat. (2001). Thus, the injured insured becomes totally dependent on his or her insurance carrier for payment of these necessary costs. Shortly after the Legislature enacted the No-Fault Act in 1973, the Florida Supreme Court in Lasky v. State Farm Insurance Co., 296 So. 2d 9 (Fla. 1974), articulated the specific purposes of the No-Fault Act, stating that central to the legislative intent was the desire to enhance the public welfare through “an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive them into dire financial circumstances with the possibility of swelling the public relief rolls.” Id. at 16 (emphasis added). In Ivey v. Allstate Insurance Co., 774 So. 2d 679 (Fla. 2000), the court held that “[w]ithout a doubt, the purpose of the no-fault statutory scheme is to ‘provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.' ” Id. at 683-84 (emphasis added) (quoting Government Employees Ins. Co. v. Gonzalez, 512 So. 2d 269, 271 (Fla. 3d DCA 1987)).The assurance of swift and virtually automatic provision of PIP benefits is accomplished through the requirements of section 627.736(4)(b), which provides that PIP insurance benefits shall be overdue if not provided within thirty days after the insurer is furnished written notice of a covered loss and of the amount of same. If the insurer allows a claim to become overdue, the insurer is subject to specific penalties, which include an award of attorney's fees to the insured. [n.2] I emphasize that imposition of an award of fees against the insurance carrier is a penalty for failing to provide PIP benefits in accordance with the time limitations of the No-Fault Act. The court in Ivey explained the significance of the statutory provisions that allow for awards of attorney's fees to the injured insured in achieving the purpose of the No-Fault Act:Florida law is clear that in “any dispute” which leads to judgment against the insurer and in favor of the insured, attorney's fees shall be awarded to the insured. See §§ 627.736(8), 627.428(1); see also Dunmore [v. Interstate Fire Ins. Co., 301 So. 2d 502, 503 (Fla. 1st DCA 1974)]. That is, under PIP law, the focus is outcome-oriented. If a dispute arises between an insurer and an insured, and judgment is entered in favor of the insured, he or she is entitled to attorney's fees. It is the incorrect denial of benefits, not the presence of some sinister concept of “wrongfulness,” that generates the basic entitlement to the fees if such denial is incorrect. It is clear to us that the purpose of this provision is to level the playing field so that the economic power of insurance companies is not so overwhelming that injustice may be encouraged because people will not have the necessary means to seek redress in the courts.Ivey, 774 So. 2d at 684 (emphasis added).[n.2] United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 87 (Fla. 2001) (“Under the language of the Florida No-Fault Law, an insurer is subject to specific penalties once a payment becomes ‘overdue'; the penalties include ten percent interest and attorneys' fees.”); January v. State Farm Mut. Ins. Co., 838 So. 2d 604 (Fla. 5th DCA 2003).In Nationwide Mutual Fire Insurance Co. v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla. 2000), the court, in holding unconstitutional the requirement of mandatory arbitration and awards of attorney's fees to the prevailing party under section 627.736(5), again emphasized the importance of the provision for fees to the insured under section 627.428 by explaining:An objective of Florida's Motor Vehicle No-Fault Law was to provide persons injured in an accident with prompt payment of benefits. [Lasky v. State Farm Ins. Co., 296 So. 2d 9, 16 (Fla. 1974).] Similarly, the legislative objective of section 627.428(1), Florida Statutes, which provides for an award of attorney fees against insurers who wrongfully deny benefits, was to discourage insurance companies from contesting valid claims and to reimburse successful insureds for their attorney fees when they are compelled to sue to enforce their insurance contracts. See State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993).Id. at 59.There is no provision for an award of attorney's fees to the insurer in any of the provisions of the No-Fault Act and, I believe, for good reason. Such a provision would thwart the purpose of the PIP provisions of the statutory no-fault scheme by unleveling the playing field by giving the insurance companies far too much leverage over the insureds, who are dependent on the fair and speedy payment of their necessary medical bills from their insurance carrier so they will continue to have access to necessary medical care. Hence, an award of fees to the insurer under section 768.79 would circumvent the purposes of assuring swift and virtually automatic payment of benefits and, instead of discouraging insurers from contesting valid claims, it would have the effect of encouraging the contest of valid claims. Furthermore, an award of fees to the insurer under section 768.79 would completely vitiate the purpose of imposing a penalty on the insurer under section 627.428. Moreover, because section 768.79 is punitive in nature, [n.3] an award of fees to the insurer would actually impose a penalty on the insured. I do not believe that the Legislature intended this result in enacting the No-Fault Act or section 768.79.[n.3] See Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 817 So. 2d 1050, 1054 (Fla. 1st DCA 2002) (“Moreover, the offer of judgment statute and rule should be strictly construed because the procedure is in derogation of the common law and is penal in nature.”), approved, 849 So. 2d 276 (Fla. 2003); Schussel v. Ladd Hairdressers, Inc., 736 So. 2d 776, 778 (Fla. 4th DCA 1999) (noting that “section 768.79 and Florida Rule of Civil Procedure 1.442 are punitive in nature . . . .”) (citing TGI Friday's, Inc. v. Dvorak, 663 So. 2d 606, 614 (Fla. 1995); Loy v. Leone, 546 So. 2d 1187, 1189 (Fla. 5th DCA l989)).I also believe that imposition of attorney's fees on the insureds pursuant to section 768.79 could totally offset the insureds' benefit awards for these essential medical costs and leave the insureds with unpaid medical bills that could potentially cause a cessation of their medical care. In addition, imposition of fees against the insureds could leave the insureds actually owing money to their insurance company. In essence, the insureds could lose the benefits of the coverage for which they paid a premium and be saddled with a debt owed to their insurance company. Surely, the Legislature did not intend for such calamities to occur to insureds who were, according to the court in Lasky, given “an assurance that [they] would receive some economic aid in meeting medical expenses and the like . . . .” Imposition of fees pursuant to section 768.79 would, in my view, constitute a breach of that assurance and could potentially place many injured insureds in “dire financial circumstances with the possibility of swelling the public relief rolls” -- a circumstance the court in Lasky indicated should not occur.Moreover, the stated purpose of the No-Fault Act is to “provide medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits . . . .” § 627.731, Fla. Stat. (2001). This purpose is accomplished through the provisions of section 627.733, which require that every owner of a motor vehicle “maintain security as required by subsection (3) . . . .” § 627.733(1), Fla. Stat. (2001). Subsection (3) provides that “[s]uch security shall be provided: (a) [b]y an insurance policy . . . which provides the benefits and exemptions contained in ss. 627.730-627.7405.” § 627.733(3)(a), Fla. Stat. (2001). Section 627.736 contains the provisions that specify what the security requirements are: medical, disability and death benefits. As the court explained in Reid v. State Farm Fire & Casualty Co., 352 So. 2d 1172 (Fla. 1977):The provision of Section 627.733, that every owner or registrant of a motor vehicle required to be registered and licensed in the state shall maintain security, must be read in context with the rest of the Florida Automobile Reparations Reform Act. In this context, the purpose of the required security is clearly to provide financial responsibility to pay any “no-fault” personal injury protection benefits due under Section 627.736.Id. at 1173 (emphasis added).The point I am making is that injured insureds are provided security for the payment of their benefits. The dictionary gives the plain and ordinary meaning of the term “security”: “1. Freedom from risk or danger; safety. 2. Freedom from doubt, anxiety, or fear; confidence. 3. Something that gives or assures safety.” The American Heritage Dictionary 109 (2d ed.1985). Injured insureds who, according to Lasky, were given “an assurance . . . of economic aid” should not be subjected to the uncertainties of the offer of judgment statute, which requires the injured party to make a calculated guess at the amount of benefits a jury might award and to make another calculated guess whether the award will exceed the statutory percentage provided in the statute. Payment of the injured insureds' necessarily-incurred medical bills and continuation of their medical care is far too important to be subjected to the uncertainties of the offer of judgment statute. In my view, application of section 768.79 to PIP cases, with its inherent uncertainties and risks, has completely abrogated the security and the assurance that injured insureds were promised by the Legislature through the No-Fault Act. This is not what the Legislature intended.I further believe that those insureds who file suit to recover their benefits in small claims court without the assistance of counsel to make this burdensome calculated guess will leave insurance companies, which are represented by attorneys, with an unfair advantage. I also believe that this will discourage many insureds from attempting to obtain the benefits for which they paid a premium, leaving the insurance companies that collected their premiums with a windfall.The Florida Supreme Court recognized that section 627.428(1) is a “one-way street offering the potential for attorneys' fees only to the insured or beneficiary.” Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420, 421 (Fla. 1994). Because of the imposition of fees pursuant to section 768.79, instead of traveling down an unobstructed one-way street to recovery as intended by the Legislature, many injured insureds may find themselves stuck in front of a toll booth erected and maintained by their insurance companies without sufficient funds for passage through. This certainly is not the intention of the Legislature.Section 768.79 is part of Chapter 768, Florida Statutes, wherein the Legislature included section 768.71(3), which provides that “[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” The PIP statute found in section 627.736 specifically provides that in PIP cases, “the provisions of s. 627.428 shall apply. . . .” § 627.736(8), Fla. Stat. (2001) (emphasis added). This provision is significant because section 627.428 would apply to PIP cases regardless of the provisions of section 627.736(8). In my view, the Legislature intended that the specific provisions of section 627.428 should apply over the general provisions of section 768.79. In other words, specifically including section 627.428 in the provisions of section 627.736(8), to the exclusion of any other statutory provision for fees, clearly indicates the Legislature's intention that section 627.428 be the exclusive authority for an award of fees in PIP cases. See, e.g., Frazier v. Metropolitan Dade County, 701 So. 2d 418 (Fla. 3d DCA 1997) (holding that section 768.71(3) applied to a conflict between the wrongful death statute (the more specific statute) under which a non-negligent survivor's recovery cannot be reduced due to another survivor's negligence, and the comparative negligence statute (the more general statute), which dictates that each party's liability is limited to that party's percentage of fault, so that the comparative fault statute had to yield to the wrongful death statute).I note that the Legislature recently amended section 627.736 by adding subsection (11), which requires that the insured provide the insurer with written notice of an intent to file a claim for benefits. Ch. 2001-271, § 6, at 1759, Laws of Fla.; § 627.736(11)(a), Fla. Stat. (2001). Section 627.736(11)(d) provides that “[t]he insurer shall not be obligated to pay any attorney's fees if the insurer pays the claim within the time prescribed by this subsection.” In my view, this provision reaffirms the Legislature's intention that an award of fees to the insured be a one-way street, especially in light of the fact that the Legislature again failed to make provision for fees to the insurer.Nichols v. State Farm Mutual, 851 So. 2d 742, 747-51 (Fla. 5th DCA 2003) (Sawaya, J., concurring in part, dissenting in part). (QUINCE, J., concurs.)BOMBAY COMPANY, INC. v. BAKERMAN, 891 So.2d 555 (Fla. 3DCA 2004). Supreme Court Case No. SC05-358 (Bakerman v. The Bombay Company, Inc.). Order dated June 7, 2005. No oral argument. Torts -- Workers' compensation immunity -- Intentional torts -- Action against employer by employee who was injured when he was standing at the top of a worn wooded ladder to retrieve merchandise from storeroom and the ladder fell -- Where dangerous condition was evident to employee and there was no concealment of the danger, evidence was insufficient to overcome employer's workers' compensation immunity -- Exceptions to workers' compensation immunity are to be narrowly construed -- For the intentional torts exception to workers' compensation immunity to apply, the employer must be shown to have either exhibited a deliberate intent to injure or to have engaged in conduct which is substantially certain to result in injury or death.CABEZAS v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, 830 So.2d 156 (Fla. 3DCA 2002). Supreme Court Case No. SC02-2654 (Cabezas v. Florida Farm Bureau Casualty Insurance Company). Order dated July 11, 2003. Oral argument set for January 6, 2004. Insurance -- Homeowners -- Liability -- Exclusions -- Intentional acts -- Where insured, while investigating damage to his vehicle after accident, heard someone behind him, turned around and saw hands in the air, and, believing that he was going to be hit, reacted quickly and punched plaintiff on the side of the head, intentional acts exclusion was applicable, and homeowners policy provided no coverage for injuries suffered by plaintiff as result of blow to his head -- Where complaint alleged that insured either intentionally struck plaintiff or intentionally struck plaintiff based upon an erroneous belief that he was an assailant, the intentional act falls within the exclusion of the homeowners policy -- Even if insured's acts were deemed to be in self defense, such acts would be excluded from coverage under intentional acts exclusion -- Insurer had no duty to defend or indemnify insured where allegations of complaint, when fairly read, did not bring case within coverage.D'ANGELO v. FITZMAURICE, 832 So.2d 135 (Fla. 2DCA 2002). Supreme Court Case Nos. SC03-33 and SC03-97 (D'Angelo v. Fitzmaurice and Fitzmaurice v. D'Angelo, consolidated). Order dated May 15, 2003. Oral argument set for August 29, 2003. Torts -- Medical malpractice -- Laparotomy pad left in patient's abdomen after appendectomy -- Damages -- Setoff -- Physician not entitled to set off for amount plaintiffs received from hospital in pretrial settlement where hospital was not included on verdict form and, accordingly, was not found liable -- Question certified: Is it appropriate to set-off against the damages portion of an award against one tortfeasor in a medical malpractice action the amount recovered from settlement from another for the same incident causing the injury where the settling alleged tortfeasor was not included on the verdict form?DAVIS v. DOLLAR RENT A CAR SYSTEMS, INC., 909 So.2d 297 (Fla. 5DCA 2005). Supreme Court Case No. SC05-1817 (Williams v. Davis). Order dated April 13, 2006. Oral argument set for June 9, 2006. Wrongful death -- Automobile accident -- Intersection collision occurring at intersection adjacent to property owned by defendant -- Applying foreseeable standard of risk analysis, defendant, as owner of non-commercial property, owed duty of care regarding foliage on property that blocked decedent's view of intersection, allegedly causing fatal accident -- Foreseeable zone of risk standard adopted by supreme court in McCain v. Florida Power Corp. is the appropriate standard to apply to determine whether a duty is owed by private landowners to motorists whose view of adjacent roadway is obstructed by foliage on their property, regardless of whether property is commercial or non-commercial -- Court rejects defendant's argument that it should adopt strict rule of no liability for private landowner who is not using property commercially -- Summary judgment in favor of defendant based on agrarian rule applied by district court in Pedigo v. Smith would be inappropriate because under this rule, a private landowner of non-commercial property may be held liable for artificial conditions such as planted foliage or fencing, and court does not know whether foliage in instant case was natural or artificial -- Moreover, agrarian rule was completely abrogated in all negligence cases -- Lack of evidence of prior accidents at intersection does not establish as matter of law that defendant owed no duty of care to decedent under holding of McCain -- Absence of similar accidents does not make a particular accident unforeseeable as a matter of law and may not be the basis for holding that no duty was owed.FLORIDA HOSPITAL WATERMAN, INC. v. BUSTER, __ So.2d __, 31 Fla. L. Weekly D763a (Fla. 5DCA 2006). Supreme Court Case No. SC06-688 (Florida Hospital Waterman, Inc. v. Buster). Order dated May 5, 2006. Oral argument set by separate order. Torts -- Medical malpractice -- Hospitals -- Discovery -- Constitutional law -- Patient's Right to Know Amendment which provides that patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident -- Amendment preempts statutory privileges afforded health care providers regarding their self-policing procedures to the extent that such information is obtainable through a formal discovery request made by a patient or a patient's legal representative during the course of litigation -- Amendment is self-executing -- Amendment does not apply retroactively -- Questions certified: Does Amendment 7 preempt statutory privileges afforded health care providers' self-policing procedures to the extent that information obtained through those procedures is discoverable during the course of litigation by a patient against a health care provider? Is Amendment 7 self-executing? Should Amendment 7 be applied retroactively?LIGGETT GROUP, INC. v. ENGLE, 853 So.2d 434 (Fla. 3DCA 2003). Supreme Court Case No. SC03-1856 (Engle v. Liggett Group, Inc.). Order dated May 12, 2004. Oral argument set for October 6, 2004. Torts -- Class actions -- Punitive damages -- Smokers' class action suit seeking damages against tobacco companies and industry organization for alleged smoking related injuries -- Class, consisting of Florida smokers who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes, is required to be decertified where trial conclusively established that individualized issues of liability, affirmative defenses, and damages, outweighed any common issues in case -- Because each class member had unique and different experiences that will require the litigation of substantially separate issues, class representation is not superior to individual suits -- Individualized choice of law issues demonstrate that class proceedings are unmanageable and cannot be viewed as superior to individual litigation -- Trial court erred in awarding and ordering payment of class-wide punitive damages without the necessary findings of liability and compensatory damages -- Punitive damages award which was 18 times the defendants' proven net worth and which would financially destroy or bankrupt defendants was excessive -- Excessive punitive damages award would frustrate the societal interest in protecting all injured claimants' right to at least recover compensatory damages for their smoking and related injuries -- Trial court abused its discretion in denying defendant's motion for either remittitur or new trial -- Argument -- Reversal is mandated by plaintiff's counsel's improper argument which inflamed jury with racial pandering and pleas for nullification of the law to secure entitlement to punitive damages, and removed responsibility from jury for the size of the award, through arguing that award would be subject to appellate review and would not be paid out in a lump sum, but rather through a payout scheme -- Counsel further improperly referred to matters outside the evidence, made derogatory remarks about opposing counsel, and expressed his personal opinions to the jury -- Punitive damages were improperly awarded against defendant to whom jury allocated zero fault with respect to non-punitive counts -- Award of punitive damages was precluded by settlement agreement which resolved State of Florida's suit against tobacco companies -- Once a government agency resolves a matter of public rights or interests, the same matter cannot thereafter be relitigated by private parties -- As matter of law, Florida's settlement and release, and the res judicata effect of the resulting final judgment, preclude plaintiffs' punitive damage claims -- Court erred in instructing jury not to consider settlement agreements with regard to issue of punishment and deterrence.LINN v. FOSSUM, 894 So.2d 974 (Fla. 1DCA 2004). Supreme Court Case No. SC05-134 (Linn v. Fossum). Order dated May 26, 2005. Oral argument set by separate order. Torts -- Medical malpractice -- Evidence -- Expert testimony on standard of care -- Trial court did not err in admitting testimony of defendant's expert regarding proper standard of care where testimony was based in part on hearsay testimony of other urologists with whom expert had consulted and in part on review of plaintiff's medical records, deposition testimony of other witnesses, and expert's own medical education, training, and experience -- Expert's testimony that defendant had met appropriate standard of care was not rendered inadmissible because of expert's statement that she would apply a more rigorous standard to herself -- Personal standard that expert would apply to herself is not the standard to be applied in determining medical negligence.MARTIN ELECTRONICS, INC. v. JONES, 877 So.2d 765 (Fla. 1DCA 2004). Supreme Court Case No. SC04-1538 (Jones v. Martin Electronics, Inc.). Order dated April 28, 2005. Oral argument set for June 7, 2005. Torts -- Workers' compensation -- Exclusive remedy -- Judicial estoppel -- Employee who received workers' compensation benefits, filed petition for additional attendant care benefits, litigated before judge of compensation claims on theory that covered industrial accident occurred, and obtained order predicated on finding that employee sustained injury by accident may not bring suit against employer for personal injuries sustained on the job that were the basis for the workers' compensation award -- Question certified: May an employee receiving workers' compensation benefits litigate entitlement to additional benefits then, having obtained an award of the additional workers' compensation benefits, bring suit in circuit court for the personal injuries sustained on the job that were the basis for the award?McKEITHAN v. HCA HEALTH SERVICES OF FLORIDA, INC., 879 So.2d 47 (Fla. 4DCA 2004). Supreme Court Case No. SC04-1876 (McKeithan v. HCA Health Services of Florida, Inc.). Order dated March 15, 2005. Oral argument set by separate order. Torts -- Hospitals -- Causation -- No error in granting defendant hospital's motion for directed verdict where no competent testimony was presented that had nurses accessed chain of command such conduct would have led to different outcome for patient, and where plaintiffs failed to present evidence that failure of nurses to access chain of command would have affected treatment decisions of treating physician -- Evidence -- No error in allowing pediatric neurologist to offer opinion based in part upon deposition of pediatric neuroradiologist who testified at trial -- No error in denying plaintiffs' motion for directed verdict on issue of supervision of graduate nurse where defendant presented sufficient evidence of supervision to submit issue to jury.MORA v. WASTE MANAGEMENT, INC., 911 So.2d 1251 (Fla. 4DCA 2005). Supreme Court Case No. SC05-2024 (Waste Management, Inc. v. Mora). Order dated March 3, 2006. Oral argument set for May 1, 2006. Torts -- Automobile accident -- Damages -- Additur -- Where jury awarded plaintiffs damages for past and future medical expenses and lost earnings, but no damages for past or future pain and suffering, and plaintiffs filed motion for new trial, trial court erred in denying motion for new trial and ordering additur -- Trial court cannot properly force plaintiffs to accept additur in the place of new trial on damages -- Conflict certified.NORRIS v. TREADWELL, 907 So.2d 1217 (Fla. 1DCA 2005). Supreme Court Case No. SC05-1326 (Norris v. Treadwell). Order dated January 11, 2006. No oral argument. Attorney's fees -- Torts -- Offer of judgment -- Defendant whose offer of judgment was rejected and who obtained judgment of “no liability” was entitled to attorney's fees -- Fact that motion for attorney's fees was served after the jury verdict but before judgment was filed does not relieve plaintiff of obligation to pay defendant's attorney's fees -- Purpose of rule 1.525, which requires that motion for attorney's fees be served within 30 days after filing of the judgment, is fully accomplished by interpretation that establishes the latest point at which a prevailing party may serve a motion for fees and costs -- Party seeking fees may serve a motion as soon as entitlement is established, but motion must be served no later than 30 days after filing of judgment -- Conflict certified.PLANTATION GENERAL HOSPITAL L.P. v. HOROWITZ, 895 So.2d 484 (Fla. 4DCA 2005). Supreme Court Case No. SC05-331 (Horowitz v. Plantation General Hospital L.P.). Order dated February 17, 2006. Oral argument set by separate order. Torts -- Medical malpractice -- Strict liability -- Hospitals -- Error to enter summary judgment holding hospital liable to plaintiffs for unsatisfied judgment obtained against uninsured physician with privileges at hospital based on premise that Florida's physician financial responsibility law created “strict liability” right of action against hospital for up to $250,000 of unsatisfied judgment -- Nothing in statute supports notion that legislature intended that hospital be strictly liable for failure to correctly determine whether staff-privileged physician has “established” compliance with financial responsibility law -- Court's explicit conclusion is that legislature has implied no damages remedy of any kind under section 458.320, whether it be based on strict liability, negligence, suretyship, contract, contribution, indemnification, criminal punishment, or other legal theory -- Conflict certified.POWERS v. THOBHANI, 903 So.2d 275 (Fla. 4DCA 2005). Supreme Court Case Nos. SC05-1191 & SC05-1192 (Your Druggist, Inc. v. Powers & B.A.L. Pharmacy v. Powers). Order dated March 3, 2006. Oral argument set for May 1, 2006. Wrongful death -- Negligence -- Pharmacies -- Action arising out of death caused by combined drug overdose, with lab results indicating positive results for various narcotics which had been lawfully prescribed by decedent's doctor and allegedly filled by defendant pharmacies -- Error to grant motion to dismiss negligence claims against pharmacies which alleged that pharmacies owed decedent a duty to provide for health, safety and welfare of its customers commensurate with the prevailing professional standard of care -- Strong policy basis already exists in Florida supporting a pharmacist's duty to warn customers of risks inherent in filling repeated and unreasonable prescriptions with potentially fatal consequences -- Conflict certified -- Court notes that its holding that claims are sufficient to survive motion to dismiss does not dictate that plaintiff's claims will necessarily survive summary judgment motion or prevail at trial.ROACH v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, 892 So.2d 1107 (Fla. 2DCA 2004). Supreme Court Case No. SC04-2313 (State Farm Mutual Automobile Insurance Company v. Roach). Order dated July 11, 2005. Oral argument set for November 3, 2005. Insurance -- Underinsured motorist -- Exclusions -- Anti-stacking provisions -- Conflict of laws -- Lex loci contractus -- Action for underinsured motorist benefits brought by year-round Florida residents who were injured while riding as passengers in automobile which was owned and operated by their winter neighbors and which was insured under policy issued to owners in foreign state at owners' address in that state, through agent in that state -- Error to enter summary judgment in favor of insurer based on exclusionary provision of policy which would preclude passengers from “stacking” underinsured motorist benefits on top of policy limits they received from the policy covering the other vehicle involved in collision and from insurer in its capacity as owners' liability insurer, an exclusion which was permitted under laws of state in which policy was issued but which is contrary to Florida public policy that UM coverage must be over and above benefits available under any motor vehicle liability insurance coverage and that amount of underinsured coverage shall not be reduced by setoff against any coverage, including liability insurance -- Exception to general rule of lex loci contractus occurs when Florida court recognizes a “paramount interest” in protecting Florida residents from provision of insurance contract that is repugnant to public policy of Florida -- Exception applies when Florida bears significant connection to insurance coverage and when insurance company has reasonable notice that persons and risks covered by insurance policy are centered in Florida -- Where there is significant degree of permanency in an insured's sojourn in Florida, insured may invoke Florida's public policy to invalidate an exclusionary clause prohibiting stacking of underinsured motorist benefits, provided that insurance company is on reasonable notice that risk of policy is centered in Florida at time of accident -- Owners established significant degree of permanency in Florida by owning home in Florida continuously since 1993, returning to reside in Florida for approximately five and a half months every year thereafter, and garaging vehicle in Florida at the time the accident occurred -- Whether insurer had reasonable notice that risk of policy was centered in Florida at time of accident is disputed issue of fact which precluded entry of summary judgment -- Court notes instant case involves only the application of Florida's public policy to invalidate exclusionary provision, and insurer's duty to provide coverage is not at issue -- Accordingly, court was not required to consider meaning of “principally garaged” as it appears in section 627.727(1) -- Passengers' status as year-round Florida residents not relevant to court's holding in this appeal -- Question certified: When Florida is the forum for an action to obtain underinsured motorist benefits under an insurance contract that is otherwise governed by the law of another state, may an insured invoke Florida's public policy to invalidate an exclusionary clause prohibiting the “stacking” of underinsured motorist benefits when there is a significant degree of permanency in the insured's sojourn in Florida and the insurer is on reasonable notice that the risk of the policy is centered in Florida at the time of the accident that occurred in Florida?ROOS v. MORRISON, __ So.2d __, 30 Fla. L. Weekly D2288a (Fla. 1DCA 2005). Supreme Court Case No. SC05-2170 (Morrison v. Roos). Order dated December 19, 2005. Oral argument set by separate order. Torts -- Automobile accident -- Liability of vehicle passenger for injury to another vehicle passenger -- Error to dismiss action against passenger in sport utility vehicle which alleged that passenger told driver of SUV that roadway was clear behind SUV so that driver could back up the SUV, and that driver backed up the SUV and hit motorcycle behind the SUV on which plaintiff was a passenger -- Complaint sufficiently stated both the duty and causation elements of cause of action for negligence -- Allegations sufficiently established that defendant passenger undertook the duty of determining whether driver's intended path of travel was clear -- Question certified: May a vehicular passenger be held liable to another vehicular passenger in circumstances where the potentially liable passenger was in a superior position to the driver of that passenger's vehicle to observe a potential hazard and gave affirmative advice to the driver which resulted in a collision with the other passenger's vehicle?WILLIS v. GAMI GOLDEN GLADES, LLC., 881 So.2d 703 (Fla. 3DCA 2004). Supreme Court Case No. SC04-1929 (Willis v. Gami Golden Glades, LLC.). Order dated March 31, 2005. Oral argument set for June 9, 2005. Torts -- Psychological damage -- Impact rule -- Action against hotel and company that provided security services for hotel by hotel guest who sustained psychological injuries as result of being criminally assaulted as she stepped from her car in a parking lot to which she had been directed by a security guard, alleging that defendants were negligent in failing to provide plaintiff protection from foreseeable criminal action -- Trial court did not err in granting summary judgment for defendants on ground that plaintiff's action for psychological injuries was barred by impact rule -- Questions certified: 1. Is the evidence that the plaintiff was touched against her will by the pistol placed to her head and in “patting down” her body sufficient to satisfy the Florida impact rule? 2. Is the evidence that the plaintiff was apparently the object of an assault and multiple batteries sufficient to satisfy a “free standing tort” exception to the impact rule which may exist in Florida? 3. Is the innkeeper-guest relationship involved in this case a “special relationship” under an exception to the impact rule which may exist in Florida? 4. Should the impact rule be abolished?WOODARD v. JUPITER CHRISTIAN SCHOOL, 913 So.2d 1188 (Fla. 4DCA 2005). Supreme Court Case No. SC05-1986 (Woodard v. Jupiter Christian School). Order dated March 3, 2006. Oral argument set for May 5, 2006. Torts -- Negligent infliction of emotional distress -- Impact rule -- Action by former student at Christian school which is not connected with any established church and the school's chaplain, alleging that student met with chaplain for counseling about his sexual orientation, that student disclosed to chaplain that he was homosexual to seek spiritual counsel after receiving assurance that conversation was confidential, that chaplain relayed the information to school administrators who then disclosed the information to others, that school administrators expelled the student, and that student was berated by the press and the school president, and shunned by his schoolmates -- Claim was barred by impact rule and properly dismissed -- Taking allegations as true for purpose of motion to dismiss, plaintiff alleged disclosure of confidential information arising from special relationship between student and a member of the clergy, but there has not been recognition of an exception to the impact rule for disclosure of information by a member of the clergy -- Question certified: Does the impact rule preclude a claim for negligent infliction of emotional distress arising out of the breach of confidential information provided to a clergyman?Torts -- Automobile accident -- Jurisdiction -- Substituted service of process -- Defendants did not waive challenges to personal jurisdiction by defending case and not taking an interlocutory appeal on issue of personal jurisdiction -- Substituted service of process under section 48.171, Florida Statutes, was defective where complaint lacked allegations that defendants are either nonresidents, residents of Florida who subsequently became nonresidents, or residents of Florida concealing their whereabouts -- When complaint is devoid of the jurisdictional allegations required for substituted service, defendant cannot be properly served under the substituted service statuteALBERTO J. ALVARADO and PACIFIC BUILDING & SUPPLIES, CORP., Appellants, v. MIRTA CISNEROS AND MARIO CRUZ, Appellees. 3rd District. Case No. 3D04-2907. L.T. Case No. 01-19394. Opinion filed January 18, 2006. An Appeal from the Circuit Court for Miami-Dade County, Norman S. Gerstein, Judge. Counsel: Buckner, Shifrin, Rice & Etter, and Charles W. Rice, for appellants. Lanza & Bugay; Robert S. Glazier, for appellees.(Before SUAREZ and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.)(CORTIÑAS, Judge.) The defendants, Alberto Alvarado and Pacific Building & Supplies, Corp. (“Pacific”), appeal from an adverse final judgment.In 2001, plaintiff Mirta Cisneros filed a complaint for damages arising out of an automobile accident with Alvarado, who was operating a truck owned by Pacific. In her negligence count, Cisneros alleged that defendant Alvarado was a resident of Dade County and that defendant Pacific was a corporation licensed to conduct business in Dade County. In September 2001, the plaintiff's attorney filed an affidavit stating that a diligent search for the defendants had been conducted but the attorney was unable to confirm their whereabouts.In October 2001, the plaintiff filed an amended complaint, adding Antonio Rodriguez and Lourdes Rodriguez as defendants in their capacity “as successors and trustees of an administratively dissolved corporation known as Pacific Building & Supplies, Corp.” The plaintiff served defendants Alvarado and Pacific by sending the summons and complaint to the Secretary of State. The litigation documents subsequently mailed to the defendants were returned by the post office as either “unclaimed” or “Moved Left No Address.”In January 2002, the defendants filed a Motion to Quash Service of Process. On February 8, 2002, the plaintiff filed an Affidavit of Diligent Search, stating that she (1) conducted a diligent search to discover the defendants' whereabouts, and (2) attempted to contact the defendants at their last known residences. On February 28, 2002, the trial court denied the defendants' motion to quash service. Although they could have done so, the defendants did not take an interlocutory appeal on their jurisdictional claims.The defendants answered the amended complaint by asserting, as an affirmative defense, that the court lacked personal jurisdiction over them. Thereafter, the case was set for a jury trial, which commenced on March 29, 2004. The jury returned a seventy-five thousand dollar ($75,000) verdict for the plaintiff. Subsequently, the defendants filed a motion for a new trial in which they (1) renewed their claim regarding the court's lack of personal jurisdiction and the denial of their motion to quash service, and (2) objected to certain alleged inflammatory and prejudicial comments made by the plaintiff during closing arguments.The trial court denied the defendants' jurisdictional challenges concluding that, even if the plaintiff failed to properly serve the defendants, the defendants waived their personal jurisdiction objections by defending the case and not taking an interlocutory appeal on the issue of personal jurisdiction.We review the trial court's order which denied the defendants' motion to quash service of process de novo. See Labbee v. Harrington, 913 So. 2d 679, 681 (Fla. 3d DCA 2005).It is well-settled that “[a] judgment entered without valid service is void for lack of personal jurisdiction and may be collaterally attacked at any time.” Great Am. Ins. Co. v. Bevis, 652 So. 2d 382, 383 (Fla. 2d DCA 1995). Nevertheless, a defendant may waive a timely objection to personal jurisdiction by seeking affirmative relief because requesting such relief is inconsistent with an initial defense of a lack of personal jurisdiction. Babcock v. Whatmore, 707 So. 2d 702, 704 (Fla. 1998); Paradise of Port Richey v. Estate of Boulis, 810 So. 2d 1044, 1046 (Fla. 4th DCA 2002). Types of affirmative actions which may be deemed to waive personal jurisdiction include the filing of permissive counter-claims and cross-claims, or requests that a court take jurisdiction of a proceeding. Paradise of Port Richey, 810 So. 2d at 1046 (citing Shurden v. Thomas, 134 So. 2d 876, 878 (Fla. 1st DCA 1961)). Recently, in Sprint Corp. v. Telimagine, No. 2D05-1892, 2005 WL 3536271 (Fla. 2d DCA Dec. 28, 2005) [31 Fla. L. Weekly D65b], the Second District found that the defendant Sprint argued beyond matters of defense when it moved, by motion to dismiss, to enforce an arbitration clause in its contract with the plaintiff, thereby submitting itself to the court's jurisdiction and waiving any objections based on a lack personal jurisdiction. Id. at *2.Here, however, the plaintiff did not seek affirmative relief but, rather, simply defended the lawsuit. Accordingly, we hold that the trial court erred in concluding that the defendants had waived their personal jurisdiction objections. “[I]f a defending party timely raises an objection to personal jurisdiction or service of process, then that defendant may plea to the merits and actively defend the lawsuit without waiving the objection.” Berne v. Beznos, 819 So. 2d 235, 238 (Fla. 3d DCA 2002).The defendants object to the trial court's exercise of jurisdiction over them on the ground that the complaint failed to include jurisdictional allegations or facts, such as concealment of whereabouts, for the use of section 48.171, Florida Statutes (2001). The defendants further argue that the plaintiff's Affidavit of Diligent Search was conclusory because it failed to sufficiently demonstrate that diligent efforts were made to locate the defendants.In response, the plaintiff contends that the Affidavit of Diligent Search was sufficient as it properly showed that the plaintiff undertook reasonable efforts to locate the defendants. The plaintiff further contends that her Affidavit of Compliance with sections 48.171 and 48.161 and her Affidavit of Diligent Search cured any defects in the complaint.The applicable statute in the instant case, section 48.171, designates the Secretary of State as the agent for a resident defendant who has concealed his whereabouts and caused injury by the ownership, operation, or control of a motor vehicle within the state.1 Procedural requirements for effecting substituted service are outlined in section 48.161, Florida Statutes (2001).2Because substituted service of process statutes provide an exception to the general rule that a defendant must be personally served, they must be strictly construed to protect due process guarantees. Monaco v. Nealon, 810 So. 2d 1084, 1085 (Fla. 4th DCA 2002); McAlice v. Kirsh, 386 So. 2d 401 (Fla. 3d DCA 1979). Thus, to serve the Secretary of State on behalf of a defendant motor vehicle operator or owner, the plaintiff must plead the jurisdictional basis either by tracking the language of the statute, or by alleging the ultimate facts which bring the defendant within the ambit of the statute. See id.; Great Am. Ins. Co., 652 So. 2d at 383.The defendants correctly assert that service was defective as the complaint lacks allegations that the defendants are either (1) nonresidents, (2) residents of Florida who subsequently became nonresidents, or (3) residents of Florida concealing their whereabouts. See § 48.171, Florida Statutes (2001); Great Am. Ins. Co., 652 So. 2d at 383. We note that even the plaintiff's subsequently-filed affidavits, which were not part of the complaint, fall short of making the required allegations to invoke the substituted service statute. When the complaint is devoid of the jurisdictional allegations required for substituted service, the defendant cannot be properly served under the substituted service statute. Id. (citing Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978)). Where, as here, the complaint only alleges that the defendants were residents of Dade County, the defendants are only subject to personal service. See Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978). Since the plaintiff did not personally serve the defendants and substituted service was defective, the trial court should have granted the defendants' motion to quash service of process. As the trial court never acquired personal jurisdiction over the defendants, the verdict must be set aside and the matter remanded.Since we have determined that the trial court lacked jurisdiction from the outset, we need not address whether procedural requirements for service of process were complied with or whether the trial court abused its discretion in refusing to grant a new trial based on an improper closing argument by the plaintiff.Reversed and Remanded.__________________1Section 48.171 states, in relevant part:Any nonresident of this state, . . . or any resident of this state, being the licensed operator or owner of or the lessee, or otherwise entitled to control any motor vehicle under the laws of this state, who becomes a nonresident or conceals his whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his or her servants, agents, or employees, . . . constitutes the Secretary of State his or her agent for the service of process in any civil action begun in the courts of the state . . . . § 48.171, Fla. Stat. (2001).2According to section 48.161, the plaintiff must serve the Secretary of State and mail notice of service and a copy of process to the defendant by registered or certified mail. The plaintiff is then required to file with the court both the return receipt for the documents mailed to the defendant and an affidavit of compliance with applicable statutes. See § 48.161, Fla. Stat. (2001); Chapman v. Sheffield, 750 So. 2d 140, 142 (Fla. 1st DCA 2000).Torts -- Plaintiff alleging canvas cover over trailer containing construction debris was improperly installed by defendant and, as a result, became stuck while he was attempting to remove it, causing him to fall from trailer and to sustain injuries -- Civil procedure -- Default -- No abuse of discretion in granting motion to set aside default where movant established excusable neglect and due diligence -- Affidavit which established that complaint was faxed to defense attorneys' office but due to vacations of certain personnel, it was not timely responded to, established excusable neglect, and motion to set aside was filed within reasonable time after learning of default -- Error to grant defendant's motion for summary judgment in which defendant denied knowledge of any acts on its part associated with loading of construction debris into trailer where plaintiff filed opposing affidavit alleging that defendant was responsible for preparing trailer for shipment and placing a cover over the cargo in the trailerALEX LANZA, Appellant, vs. ALLIED TRUCKING OF FLORIDA, INC., Appellee. 3rd District. Case No. 3D05-53. L.T. Case No. 02-029116. Opinion filed January 11, 2006. An Appeal from the Circuit Court for Miami-Dade County, Michael A. Genden, Judge. Counsel: Mark J. Feldman, for appellant. Marlow, Connell, Abrams, Adler, Newman & Lewis and Alejandro (Alex) Suarez, for appellee.(Before LEVY, RAMIREZ, and SUAREZ, JJ.)(SUAREZ, J.) Alex Lanza appeals an order vacating a default and the entry of a final summary judgment in favor of the appellee, Allied Trucking of Florida, Inc. (“Allied”). We affirm the setting aside of the default and reverse the final summary judgment.Lanza brought a negligence action against Allied. He alleges Allied failed to properly install a canvas cover over a trailer containing construction debris which Lanza transported to the dump. He claims the canvas became stuck while he was attempting to remove it -- causing him to fall from the trailer and to sustain injuries. Lanza obtained a default against Allied on January 3, 2003. On January 31, 2003, Allied moved to set aside the default. On April 8, 2004, after a stay of the proceedings, the trial court granted Allied's Motion to Set Aside Default.We affirm the granting of Allied's Motion to Set Aside Default. A party moving to set aside a default must show excusable neglect, a meritorious defense, and due diligence in moving to set aside the default. See Venero v. Balbuena, 652 So. 2d 1271 (Fla. 3d DCA 1995).1 Attorneys for Allied filed two affidavits to support the claims of excusable neglect and due diligence. The affidavits established that the complaint was faxed to the defense attorneys' office but due to vacations of certain office personnel, it was not timely responded to. Failure to set aside a default is an abuse of discretion where excusable neglect has been shown. See, e.g., Okeechobee Imps. Inc. v. Am. Sav. & Loan Ass'n, 558 So. 2d 506 (Fla. 3d DCA 1990) (employee's failure to follow established corporate procedure in processing complaint constitutes excusable neglect); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So. 2d 83 (Fla. 3d DCA 1987) (tardiness in answering occasioned by breakdown in defendant's established office practice constitutes excusable neglect); Kuehne & Nagle, Inc. v. Esser Int'l, Inc., 467 So. 2d 457 (Fla. 3d DCA 1985) (employee's mistake in filing away summons and complaint constitutes excusable neglect). As the affidavits establish excusable neglect recognized by the courts and the motion to set aside was filed within a reasonable time after learning of the default, the trial court was correct in granting the motion.On August 6, 2004, Allied moved for summary judgment. In support of the motion, it attached an affidavit of its representative who denied knowledge of any acts on the part of Allied associated with the loading of construction debris into the trailer. Lanza filed an affidavit in opposition to the motion for summary judgment alleging that Allied was responsible for preparing the trailer for shipment and placing a cover over the cargo in the trailer. On December 1, 2004, the trial judge granted Allied's motion for summary judgment and entered final summary judgment in Allied's favor.We reverse the final summary judgment entered in favor of Allied on grounds that genuine issues of material fact remain to be resolved by a jury. See Anello v. Murphy Motor Freight Lines, Inc., 525 F.2d 276 (2d Cir. 1975); Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); Lumbermens Mut. Cas. Co. v. Alvarez, 443 So. 2d 279 (Fla. 3d DCA 1983).Affirmed in part, reversed in part, and remanded for further proceedings.__________________1The issue of a meritorious defense was not raised on appeal.Torts -- Automobile accident -- Discovery -- Non-final order denying discovery concerning financial relationship between opposing party's insurer and its medical expert -- Appeals -- Certiorari is generally not available to review order denying discovery -- None of exceptions to general rule apply -- Moreover, denial of motion has not been shown to be “a violation of a clearly established principle of law resulting in a miscarriage of justice”ARMANDO CHAVARRIA, Petitioner, vs. ROBERTO BAUTISTA, Respondent. 3rd District. Case No. 3D05-2084. L.T. Case No. 02-9972. Opinion filed January 18, 2006. A Petition for Writ of Certiorari to the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge. Counsel: G. Luis Dominguez, for petitioner. Luks, Santaniello, Perez Petrillo & Gold, and Daniel J. Santaniello, for respondent.(Before GREEN, RAMIREZ, and ROTHENBERG, JJ.)(RAMIREZ, J.) Armando Chavarria seeks certiorari review of a non-final order denying him discovery concerning the financial relationship between Roberto Bautista's insurer and its medical expert, as allowed in Springer v. West, 769 So. 2d 1068 (Fla. 5th DCA 2000), which was adopted by Southern Diagnostic Associates v. Bencosme, 833 So. 2d 801, 802 (Fla. 3d DCA 2002). We deny relief.The underlying action arises out of an automobile accident which occurred on or about August 21, 2001. The petition takes issue with an Order dated August 4, 2005, denying Plaintiff's Fourth motion to compel better answers to Plaintiff's expert interrogatories. We stated in Duran v. MFM Group, Inc., 841 So. 2d 500, 501 (Fla. 3d DCA 2003) that “[a]s a general rule, certiorari will not be granted to review an order denying discovery since any error in denying the requested discovery can be remedied on plenary appeal.” Although there are exceptions to that rule, none are applicable here. Furthermore, Chavarria has not demonstrated that the denial of his motion constituted “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So. 2d 93, 96 (Fla. 1983).Certiorari denied
Torts -- Workers' compensation -- Exclusive remedy -- Exceptions -- Intentional tort -- Zookeeper injured when full-grown male lion was able to grab keeper's fingers and pull her hand and arm into cage while keeper was reinforcing lion's good behavior with food rewards during simulated blood draw procedure -- Because undisputed facts did not establish that employer engaged in conduct that was substantially certain to result in injury or death, trial court properly entered summary judgment in favor of employer based on workers' compensation immunity -- Blood draw procedure at issue had been performed several times a week for at least four years before accident at issue without prior injuries other than a scratch requiring a band-aid -- Evidence established that employer had fully trained plaintiff before she was permitted to work with lion, that it supervised plaintiff's work during training period, that plaintiff was fully aware of the risks of working with lion, and that plaintiff was fully aware of how to perform the procedure to minimize those risks -- Finally, there was no evidence that employer concealed dangers inherent in the blood draw procedure from plaintiff or any other employee, and there was no dispute that plaintiff was not required to perform job of giving lion food rewards as part of her assigned duties with employer, but was permitted to select what position she wished to be in during the procedure -- Expert's affidavit criticizing blood draw procedure and making a series of recommendations for how employer could make the procedure safer did not create genuine issues of material fact that would preclude entry of summary judgment for employerAMANDA BOURASSA, Appellant, v. BUSCH ENTERTAINMENT CORP., d/b/a BUSCH GARDENS, Appellee. 2nd District. Case No. 2D05-2018. Opinion filed April 7, 2006. Appeal from the Circuit Court for Hillsborough County; James M. Barton, II, Judge. Counsel: Joel D. Eaton of Podhurst Orseck, P.A., Miami; and John McLaughlin of Wagner, Vaughn & McLaughlin, P.A., Tampa, for Appellant. Elliot H. Scherker and Daniel M. Samson of Greenberg Traurig, P.A., Miami; and Barry Richard of Greenberg Traurig, P.A., Tallahassee, for Appellee.(STRINGER, Judge.) Amanda Bourassa seeks review of the final summary judgment entered in favor of Busch Entertainment Corporation d/b/a Busch Gardens in this personal injury action. Because the undisputed facts show that the intentional tort exception to workers' compensation immunity does not apply, we affirm.FACTSWhile the parties dispute some of the facts surrounding how the accident occurred, the facts relevant to the summary judgment issues are essentially undisputed. Busch Gardens owns a full-grown male lion named Max. Max suffers from a liver disorder that requires him to undergo periodic blood tests. For a number of years, Busch Gardens' keepers would anesthetize Max when they needed to draw blood; however, because of health concerns about Max and safety concerns about the keepers during this process, Busch Gardens ultimately sought a different way to perform this procedure.In 1998, at the suggestion of one of its veterinarians, Busch Gardens began using positive reinforcement operant conditioning to train Max to enter a narrow cage and lie down so blood could be drawn from his tail. As part of the operant conditioning, Max was rewarded with food when he remained calm during each step of the procedure. While one keeper operated the cage gates and two others performed the blood draw, a fourth keeper would sit outside the cage by Max's head and provide the food rewards. These food rewards consisted of either large chunks of meat or large balls of ground meat that were pushed through the bars of the cage. In order to reinforce Max's conditioning with this procedure, simulated blood draws -- during which the entire procedure would be performed but no blood would actually be drawn -- were performed several times a week.Busch Gardens had a multiphase training program for all of its keepers who were going to work with carnivores throughout the park. Only certain keepers were permitted to work with Max, and those keepers were extensively trained on the blood draw procedure. This training included observing the procedure numerous times, performing each portion of the procedure numerous times under strict supervision, and oral testing on all portions of the procedure and how it was to be done properly. During this training, keepers were specifically trained on how to hold the food rewards and pass them through the cage bars so that Max would have access to the meat but not to the keeper's hands or fingers. When performed correctly, the procedure did not allow for any part of Max's mouth to come into contact with any part of the keeper's body. In the four years between the time Busch Gardens implemented this blood draw procedure and the accident at issue here, the only known injury occurred when a keeper was scratched by the claw of a female lion who was being trained to have blood drawn. This injury required treatment with a band-aid.The record shows that Bourassa had worked with animals and had been around animals long before she began working at Busch Gardens. While in high school, Bourassa had been an active member of Future Farmers of America. She had subsequently obtained an associate of science degree in animal sciences from Abraham Baldwin Agricultural College. During college, she completed a three-month internship as a keeper at the Lowry Park Zoo. During her deposition, Bourassa testified that she had learned about positive reinforcement operant conditioning while in school and had used it with various animals while she was an intern at the Lowry Park Zoo.Bourassa began working as a keeper at Busch Gardens in the summer of 2001. She was considered a dedicated and very capable keeper by her supervisors. After Bourassa had been working at Busch Gardens for several months, she began training to perform the blood draw procedure with Max. She observed the procedure on approximately twenty occasions and participated in the procedure approximately ten times with direct supervision. After Bourassa successfully completed her training, she participated in various aspects of the blood draw procedure with Max at least five times before the day of the accident.On the day of the accident in May 2002, Bourassa had arranged for her family to have a “behind the scenes” tour of the park. As part of this tour, Bourassa specifically requested that she be permitted to perform a simulated blood draw on Max, and she specifically requested to be the keeper who reinforced Max's good behavior with food rewards. All went well until the end of the procedure when, somehow, Max was able to grab Bourassa's fingers and pull her hand and arm into the cage. The struggle between the two did not end until Bourassa's arm was severed at the elbow.Since the day of the accident, Bourassa has been receiving workers' compensation benefits from Busch Gardens.1 In June 2003, Bourassa sued Busch Gardens seeking damages for her injuries. Busch Gardens raised workers' compensation immunity, pursuant to section 440.11, Florida Statutes (2002), as an affirmative defense to Bourassa's action. Bourassa in turn contended that her case fell into the “intentional tort” exception to workers' compensation immunity. After the parties conducted extensive discovery, Busch Gardens moved for summary judgment on the issue of workers' compensation immunity. The trial court granted summary judgment in favor of Busch Gardens, and Bourassa appealed.INTENTIONAL TORT EXCEPTIONBourassa first contends that summary judgment was improper because Busch Gardens' actions fell within the intentional tort exception to workers' compensation immunity as a matter of law. Both parties correctly rely on Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), as setting forth the applicable law. In Turner, the Florida Supreme Court reaffirmed the existence of an intentional tort exception to workers' compensation immunity. Id. at 687. In doing so, the court held that the injured worker may establish an intentional tort in one of two ways. “[T]he employer must be shown to have either ‘exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.' ” Id. (quoting Fisher v. Shenandoah Gen. Constr. Co., 498 So. 2d 882, 883 (Fla. 1986)) (alteration in original).2 In applying the “substantial certainty of injury” test, the question is not what the specific employer knew or did not know, but rather whether a reasonable person would understand that the employer's conduct was substantially certain to result in injury or death. Turner, 754 So. 2d at 688-89.In addition, the courts have considered what level of conduct meets the “substantially certain” test. Turner noted that the conduct at issue must be worse than gross negligence. Id. at 687 n.4. In fact, “the cases which have actually applied the Turner doctrine, especially Turner itself, have characteristically involved a degree of deliberate or willful indifference to employee safety.” Pacheco v. Fla. Power & Light Co., 784 So. 2d 1159, 1163 (Fla. 3d DCA 2001). Thus, while an employee need not show an actual intent to injure, the employee must show that the employer was aware of the dangers and deliberately ignored them at the expense of employee safety.For example, in Turner, employees were injured in an explosion at a chemical plant. The evidence showed that PCR knew that some of its chemicals were prone to spontaneous and violent explosions but that it failed to warn its employees of the extent of the danger. 754 So. 2d at 685. There had been three other explosions involving similar chemicals in the two years before the incident at issue. Id. Despite knowledge of the danger of the chemicals and the prior explosions, PCR management had instructed employees to mix chemicals in reactors that did not have pressure relief valves and that were not designed for use in mixing reactive chemicals. Id. The court held that these facts were sufficient to establish a willful indifference to employee safety.Similarly, in Sierra v. Associated Marine Institutes, Inc., 850 So. 2d 582 (Fla. 2d DCA 2003), AMI ran a residential juvenile detention center for the Department of Juvenile Justice. Because all of the inmates were high risk, AMI imposed strict security measures.Staff members were required to undergo a rigorous orientation that included training in verbal and physical use of force, familiarization with policies and procedures, and “job shadowing” of experienced staffers. Until this training was completed, a new staff member was not to have direct contact with youths except under the direct supervision of a certified drill instructor or camp commander.Id. at 585. All members of the staff were to be alerted to specific developments concerning the risks posed by various inmates. Id. Further, all work projects were to be supervised by at least two trained staff members. Id.Despite these policies and rules, when Sierra had been employed by AMI for only eight days, he was sent alone to supervise three youths on a work project, two of whom had recently been classified as escape risks. Sierra had not undergone the required training. He was not told of the risk status of the youths he was supervising. No one was assigned to accompany him. This court held that these facts were sufficient to establish the level of indifference to employee safety necessary to support an action against AMI.Other cases that have allowed actions to go forward against employers have involved a similar level of indifference to employee safety. See, e.g., EAC USA, Inc. v. Kawa, 805 So. 2d 1 (Fla. 2d DCA 2001) (holding that employer could be subject to contribution claim based on the intentional tort exception to workers' compensation immunity when there was evidence that employer had removed safety guards from printing presses; had been warned of the dangers but refused to reinstall the guards, disregarding safety notices about the machinery; and had instructed employees to engage in dangerous practices); Connelly v. Arrow Air, Inc., 568 So. 2d 448 (Fla. 3d DCA 1990) (allowing case to go forward against employer that ignored known problems with its airplanes to avoid costly repairs, performed marginal maintenance on its planes, purposefully did not inform flight crews of the known problems with specific planes, and routinely overloaded planes above their carrying capacity).Considering the law in light of the facts of this case, it is clear that the trial court properly entered summary judgment in favor of Busch Gardens for three reasons. First, Busch Gardens did not ignore evidence of prior accidents, injuries, or known safety hazards. There is no question that Max -- a full-grown male lion -- was an extremely dangerous animal. However, the blood draw procedure at issue had been performed several times a week for at least four years before the accident involved in this case with no prior injuries other than a scratch requiring a band-aid. Thus, unlike the situation in many of the cases relied upon by Bourassa, there is no evidence here that the employer exhibited deliberate indifference to known hazards and dangers.Second, there is no question that Busch Gardens had a training program in place and that Bourassa was fully trained in the procedure she was to perform. Under this type of circumstance, at least one court has held that an employer is entitled to workers' compensation immunity. In Allstates Fireproofing, Inc. v. Garcia, 876 So. 2d 1222 (Fla. 4th DCA 2004), the evidence showed that the employer hired Garcia as a laborer to work in and around scaffolding. Garcia had five to ten years' experience working with scaffolding; however, Allstates also provided training and instruction to Garcia in both the use and moving of scaffolding approximately fifteen to twenty times before the accident. Id. at 1223. Allstates also provided a safety manual, and Garcia had taken and passed a written safety test. Id. Despite this, on the day of the accident, Garcia improperly moved the scaffolding by pushing it sideways. Id. This caused the scaffolding to fall over, hitting Garcia in the head and ultimately killing him. Id. In reversing for entry of summary judgment in Allstates' favor, the Fourth District noted that, considering the extensive safety training and procedures Allstates had in place, there was no evidence of deliberate indifference to employee safety sufficient to put Garcia's case within the exception to workers' compensation immunity.Like Allstates did with Garcia, Busch Gardens had fully trained Bourassa before she was permitted to work with Max. Contrary to Bourassa's assertions in this appeal, the evidence does not show that she was “inexperienced” in these procedures. Rather, all of the evidence establishes that Busch Gardens had trained Bourassa on this procedure, that it supervised her work during that training period, that Bourassa was fully aware of the risks of working with Max, and that she was fully aware of how to perform the procedure to minimize those risks. As in Garcia, there is no evidence to establish that Busch Gardens exhibited deliberate indifference to employee safety.Third, there is no evidence that Busch Gardens concealed the dangers inherent in the blood draw procedure from Bourassa or any other employee. Several Florida cases have held that when the employer has not concealed any of the risks involved in the activity and when the employee is fully aware of the risks, the intentional tort exception does not apply. See, e.g., Bombay Co. v. Bakerman, 891 So. 2d 555, 557 (Fla. 3d DCA 2004) (“[T]he dangerous condition was evident to the employee and there was no concealment of the danger. For that reason, we conclude that the evidence was legally insufficient to support liability under the intentional tort exception to worker's compensation immunity.”), review granted, 903 So. 2d 189 (Fla. 2005); Allstates, 876 So. 2d at 1226 (noting that Allstates did not attempt to conceal the dangers of scaffolding and did not prevent the employee from making an informed decision whether to expose himself to the risk); Tinoco v. Resol, Inc., 783 So. 2d 309 (Fla. 3d DCA 2001) (noting that the defect in the machine that injured the employee was obvious to everyone working around it and that therefore there was no evidence of deliberate indifference by the employer). These cases rely on the supreme court's statement in Turner that the cases falling into the intentional tort exception “share a common thread of evidence that the employer tried to cover up the danger, affording the employees no means to make a reasonable decision as to their actions.” Turner, 754 So. 2d at 691.Here, whatever dangers existed in sitting outside of the cage by Max's head and giving him food rewards were obvious to all. Bourassa herself testified that she was fully aware of the risks and dangers. Moreover, there is no dispute that Bourassa was not required to perform this job as part of her assigned duties at Busch Gardens. Rather, the evidence showed that keepers were permitted to select what position they wanted to be in during the blood draw procedure. Thus, Bourassa had the opportunity to make a reasonable decision as to whether to expose herself to the risk. Under these circumstances, the intentional tort exception does not apply.Bourassa relies on Gerth v. Wilson, 774 So. 2d 5 (Fla. 2d DCA 2000), to argue that summary judgment was improper; however, reliance on that case is improper for two reasons. First, while Gerth briefly discussed the intentional tort exception to workers' compensation immunity, the decision was actually based on the statutory exception that applies when an employer violates the law. The question before the court was whether an OSHA violation that could result in prison time constituted a “violation of the law” as contemplated by the workers' compensation statute. Thus, the brief mention of Turner and its objective standard was not vital to the opinion and does not support Bourassa's case. Second, the evidence in Gerth showed that the employer had refused to install safety guards around an open elevator shaft despite an earlier falling accident in the same improperly guarded shaft. Evidence that the employer had deliberately violated OSHA regulations despite being aware of a prior fall would have been sufficient to establish deliberate indifference to the safety of employees.Here, there is no question that Busch Gardens did not violate the law, and there is no evidence that Busch Gardens exhibited deliberate indifference to the safety of its employees. Accordingly, the trial court properly entered summary judgment in favor of Busch Gardens.EXPERT'S AFFIDAVITBourassa also contends that summary judgment was improper because her expert's affidavit created genuine issues of material fact that would preclude entry of summary judgment in Busch Gardens' favor. We disagree.As discussed above, the question in this case is whether Busch Gardens engaged in conduct that was substantially certain to result in injury or death. The test is not whether the death or injury was preventable. Thompson v. Coker Fuel, Inc., 659 So. 2d 1128, 1129-30 (Fla. 2d DCA 1995). Thus, an employer's knowledge of the risks of dangerous activities and its failure to make the conditions “more safe” is not sufficient to establish an exception to workers' compensation immunity in the absence of some evidence of a deliberate indifference to employee safety.For example, in Wilks v. Boston Whaler, Inc., 691 So. 2d 629 (Fla. 5th DCA 1997), the evidence showed that Wilks was required to work with potentially harmful chemicals in his job as a “foamer” for Boston Whaler. Boston Whaler had an established safety program that required all employees to attend an eight-hour safety training meeting. Those employees who worked with chemicals were specifically instructed, one-on-one, as to how to operate, wear, clean, and store the respirators they were given. After Wilks began suffering respiratory illnesses, he sued Boston Whaler.In arguing against summary judgment, Wilks offered the affidavit of an industrial hygienist, who opined that the type of respirators used by Boston Whaler were not proper and that a different type should have been used to provide fresher air to the users. The same affidavit opined that Boston Whaler should have made certain alterations to its ventilation system as well. Wilks argued that this affidavit created genuine issues of material fact concerning whether Boston Whaler engaged in conduct that was substantially certain to result in injury or death. The trial court granted summary judgment in favor of Boston Whaler, and Wilks appealed.On appeal, the Fifth District rejected Wilks' argument that the affidavit precluded summary judgment. In doing so, the Fifth District stated:The hygienist's report, which really forms the underlying basis for Wilks' allegations of culpable negligence or an intentional tort on the part of Boston Whaler, is little more than a series of recommendations for better health safety practices which could reduce overall employee health costs for Boston Whaler. Neither from the report, nor from any other part of the record, can it be inferred in any way that the failure to provide an air-supplied respirator, rather than a cartridge respirator, or the failure to provide Wilks a copy of the Material Safety Data Sheet on TDI, constituted conduct substantially certain to result in Wilks' injury or death. The safety program that Boston Whaler had in effect during the time of Wilks' employment further belies any indication that Boston Whaler had a deliberate intent to engage in conduct which, almost with certainty, would cause injury or death to its employee.. . . .. . . Boston Whaler may have done more to reduce the risk of injury from exposure to TDI, but doing more in terms of employing better methods to avoid worker injury, and intentionally creating a situation which is substantially certain to cause injury, is [sic] not the same.Id. at 631-32.Like the affidavit in Wilks, the affidavit offered by Bourassa is simply a criticism of the blood draw procedure and a series of recommendations for how Busch Gardens could make the procedure safer. Even taking the allegations in the affidavit as true, they do not rise to the level established by the case law as sufficient to establish that Busch Gardens engaged in conduct reflecting a deliberate indifference to employee safety. Accordingly, the affidavit is legally insufficient to create a genuine issue of material fact that would preclude summary judgment.Moreover, this court has specifically rejected the argument that a party may add up the individual probabilities of an accident based on the different risks inherent in a particular job to establish that injury is substantially certain to occur for purposes of the intentional tort exception to workers' compensation immunity. In Fleetwood Homes of Florida, Inc. v. Reeves, 833 So. 2d 857 (Fla. 2d DCA 2002), quashed on other grounds, Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812 (Fla. 2004), Reeves was killed after a 600-pound roll of sheet metal fell from a forklift that had its load raised fourteen feet in the air. The evidence showed that Fleetwood had been transporting sheet metal in this fashion for some time and that no sheet metal had ever fallen from the forklifts and no injuries had ever occurred. Id. at 860. Despite this, the trial court concluded that an accident was “inevitable” because of the number of hazards involved. In rejecting this conclusion, this court stated:The trial court concluded that this method of transport involved a level of risk to the workers and that if it were performed often enough or long enough, eventually it was “inevitable” that someone would be hurt or killed. However, any modestly dangerous activity at a workplace that is repeated often enough or long enough will eventually result in an accident. Although the concept of “gross negligence” examines the combination of circumstances to evaluate the relevant risk, it does not add together or cumulate the individual probabilities of an accident on each occasion to reach a conclusion that an accident is inevitable or that a risk is inordinately high. The tortfeasor's conduct must be evaluated in the context of the particular occurrence. In this case, if anything, the numerous successful performances of the challenged procedure show that a risk of accident on April 1, 1991, was far from imminent. This is not a case in which the employer continued to use the procedure after earlier mishaps or after it received warnings from other governmental or nongovernmental entities.Id. at 868.The expert affidavit presented by Bourassa lists various risks attendant in the blood draw procedure and concludes that it was “inevitable” that someone would eventually be injured because of these risks. However, this is exactly the type of conclusion this court has rejected. Thus, the proffered affidavit does not raise genuine issues of material fact sufficient to preclude summary judgment in favor of Busch Gardens.CONCLUSIONWe are not unsympathetic to Ms. Bourassa and her family. There is no denying that she endured a horrific event and that she has suffered life-altering injuries. We certainly understand her desire to seek recompense over and above what she will receive in workers' compensation benefits. However, we cannot allow sympathy to blur the contours of the intentional tort exception to workers' compensation immunity. It is not the dangerousness of the job or the nature of the injuries that determine whether the exception applies. Rather, the focus is and must be on the employer's approach to its employees' safety in light of the dangers inherent in the job. Here, because the undisputed facts evidenced in the record do not establish that Busch Gardens engaged in conduct that was substantially certain to result in injury or death, the trial court properly granted summary judgment in favor of Busch Gardens on the basis of workers' compensation immunity.Affirmed. (DAVIS, J., Concurs. WHATLEY, J., Dissents with opinion.)__________________1The pleadings reflect a factual dispute as to whether Bourassa applied for these benefits, thereby electing the remedies available to her under the workers' compensation statute and barring her right to pursue this action. See Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991); Wheeled Coach Indus., Inc. v. Annulis, 852 So. 2d 430, 431 (Fla. 5th DCA 2003) (noting that a plaintiff's mere acceptance of benefits paid does not necessarily demonstrate a conscious intent to elect the workers' compensation benefits and waive all other rights). While there are disputed issues of material fact on this issue, this issue was not raised in the summary judgment motion or at the hearing and was not considered by the trial court. Thus, we do not address the issue here.2Section 440.11, Florida Statutes, was amended in 2003 to change the standard for proving an intentional tort to one of a “virtual certainty” of injury. Ch. 2003-412, § 14, Laws of Fla. The parties agree that this statutory change does not apply to Bourassa's accident, which occurred in 2002.__________________(WHATLEY, Dissenting.) I respectfully dissent. Amanda Bourassa filed an action against Busch Entertainment Corp., d/b/a Busch Gardens, for personal injuries she sustained while working for Busch Gardens. She appeals the final summary judgment entered in favor of Busch Gardens on its defense of workers' compensation immunity.The question presented is whether the intentional tort exception to the tort immunity afforded employers by Florida's Workers' Compensation Law is applicable in this case. “[I]n order to prove an intentional tort, the employer must be shown to have either ‘exhibite[d] a deliberate intent to injure or engage[d] in conduct which is substantially certain to result in injury or death.' ” Turner v. PCR, Inc., 754 So. 2d 683, 687 (Fla. 2000) (quoting Fisher v. Shenandoah Gen. Constr. Co., 498 So. 2d 882, 883 (Fla. 1986)). No one contends Busch Gardens acted with a deliberate intent to injure Bourassa. However, I would conclude that there remained a genuine issue of material fact whether the conduct of Busch Gardens was substantially certain to cause injury or death, and this case should have been submitted to a jury for resolution.The only affidavit submitted at the summary judgment hearing was that of Bourassa's expert, Dr. Michael Schmidt. Dr. Schmidt is an expert in the field of big cats and animal behavior. He is a twenty-five-year employee of the Metro Park Zoo in Portland, Oregon, where he was employed as its chief veterinarian. He has performed blood draws on various animals, including lions, and published in excess of thirty articles on aspects of the zookeeper trade. Among other assertions, Dr. Schmidt cited inadequate training, improperly wide cage bars, hazardous lion distraction methods, and a hazardous working environment. Dr. Schmidt's affidavit centered not on matters of prevention, but rather on matters germane to summary judgment and to the objective test set forth in Turner, 754 So. 2d 683. The Turner court stated: “Under an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer's conduct was ‘substantially certain' to result in injury or death to the employee.” Id. at 688. On summary judgment the movants' affidavits, if any, are to be strictly read, and the affidavits of the party opposing summary judgment are to be liberally read. See Holl v. Talcott, 191 So. 2d 40, 46 (Fla. 1966).Other specifics of the case which could arguably cause a reasonable person to conclude that the conduct of Busch Gardens was substantially certain to cause injury or death include: (1) Bourassa was a part-time employee; (2) safety precautions during the blood draw procedure were nonexistent; a fellow worker testified that he tried to distract the lion with a broom handle, without success; (3) while working at the Lowry Park Zoo, Bourassa never hand-fed a lion, and feeding of other animals was done with a prong or bamboo stick; (4) there appears to be no other zoo or related facility which conducts blood draws in this manner; (5) the inherent risks in hand- feeding a lion; (6) the prior injury during the procedure left a permanent scar; (7) Bourassa wore latex gloves during the procedure, which is significant as the tongue of a lion has rearward facing spines; and (8) the operant conditioning was initiated primarily, if not exclusively, for the benefit of the lion. Bourassa's supervisor, Lisa Harris stated the following in her deposition: “Q: But the idea behind the voluntary blood draw was so you would not have to anesthetize the animal? A: Yes, sir.”The sending of an employee into the workplace with escapees is, at a minimum, analogous to placing a part time employee at the head of a lion for the purpose of hand feeding. See Sierra v. Associated Marine Insts., Inc., 850 So. 2d 582 (Fla. 2d DCA 2003) (reversing dismissal of plaintiff's action because facts, if proved, could convince a jury employer should have known there was substantial certainty that sending a new employee into woods to supervise minor felons of boot camp who were using machetes and pick-axes to fell trees would result in employee's injury or death).I recognize that the exceptions to workers' compensation immunity are to be narrowly construed. See Bombay Co. v. Bakerman, 891 So. 2d 555 (Fla. 3d DCA 2004). Yet, if this case does not present a jury question as to whether the employer's conduct was substantially certain to cause injury or death, then no case would seem to qualify.I would reverse the entry of final summary judgment and allow the case to proceed to trial.Torts -- Medical malpractice -- Appeals -- For an issue to be preserved by a defendant in a case involving codefendants, that defendant must object or must join in a codefendant's objection -- Physician's claim that trial court erred by failing to rule either before or during trial that physician was not an agent of the hospital and erroneously instructed jury on this issue was not preserved for appellate review where both motion for directed verdict on this issue and proposed jury instruction on agency were filed by hospital, and physician did not join in motion for directed verdict, object to fact that directed verdict was not granted or that trial court reserved ruling on matter, object to trial court's handling of agency issue, or object to proposed jury instructions -- Physician's claim that trial court erred by excluding evidence regarding free government services for future damages was not preserved for appellate review where specific issue raised on appeal was not raised in trial court -- Issue regarding trial court's failure to exclude evidence of prior administrative complaint filed against physician by Agency for Health Care Administration was not preserved for appeal where physician objected to use of AHCA records prior to opening argument, but when documents were ultimately admitted into evidence, counsel indicated he had no objection to their admission and did not request a curative instructionATILLA EAGLEMAN, M.D. and ATILLA EAGLEMAN, M.D., P.A., Appellants, v. LUKE KORZENIOWSKI, JENNIFER KORZENIOWSKI and DERIK KORZENIOWSKI, Appellees. 4th District. Case No. 4D04-2169. February 15, 2006. Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David F. Crow, Judge; L.T. Case No. 502000CA004828XXONAO. Counsel: Robert E. Biasotti, Annette M. Lang and Sylvia H. Walbolt of Carlton Fields, P.A., St. Petersburg, for appellants. Edna L. Caruso and Diran V. Seropian of Edna L. Caruso, P.A., West Palm Beach, and Christian D. Searcy and David J. White of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appellees.(Rothschild, Ronald J., Associate Judge.) Jennifer and Derik Korzeniowski, individually and on behalf of their son, Luke Korzeniowski, filed a complaint in medical malpractice against Dr. Atilla Eagleman, Atilla Eagleman, M.D., P.A., and Bethesda Memorial Hospital, Inc., for causing neurological injuries to Luke. The jury returned a verdict in favor of the Korzeniowskis. Eagleman raises three issues on appeal, none of which are preserved for appellate review. We affirm and take this opportunity to write to remind trial counsel of the necessity of a proper objection to preserve issues for appellate review.The Korzeniowskis alleged the following:1. That Eagleman was employed by Bethesda and was the agent of Bethesda;2. That Eagleman entered into a consent agreement with the Agency for Healthcare Administration (AHCA) in a case involving medical malpractice, misrepresentations in the practice of medicine, and failure to keep written medical records justifying a course of treatment;3.That the consent agreement provided notice to Bethesda that it should have supervised and monitored Eagleman;4. That Bethesda failed to select and retain competent medical staff members by granting staff privileges to Eagleman;5. That Jennifer Korzeniowski was under Eagleman's care at Bethesda;6. That Eagleman caused injury to Luke Korzeniowski's brain; and7. That Eagleman failed to appropriately evaluate fetal descent, negligently used forceps during delivery, and negligently induced labor.Bethesda filed an answer to the Korzeniowskis' complaint. Bethesda denied that Eagleman was an agent of Bethesda. Bethesda also raised seven affirmative defenses, including an affirmative defense seeking the apportionment of fault through comparative negligence.Eagleman and Eagleman, M.D., P.A. also filed an answer to the Korzeniowskis' complaint. Eagleman admitted that he was an agent of Bethesda in one paragraph of the answer but denied that he was an agent of Bethesda in another paragraph of the answer. Eagleman raised six affirmative defenses.Bethesda subsequently filed a Motion for Partial Summary Judgment. Bethesda asserted that undisputed evidence established that Eagleman was not an agent of Bethesda and that Jennifer Korzeniowski signed a statement acknowledging that physicians are not agents of Bethesda. Bethesda further claimed that the only relationship between Eagleman and Bethesda was a grant of staff privileges and that such did not create vicarious liability based on Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989). The motion was denied by the trial court.Before opening statements at the jury trial, the trial court and parties discussed Eagleman's motion in limine and objection related to the prior AHCA complaint against him.During opening arguments, the Korzeniowskis' counsel used blowups of the AHCA complaint, consent agreement, and final order when explaining this past incident involving Eagleman to the jury. Eagleman did not object to these blowups or the related discussion of the AHCA documents. The AHCA documents were ultimately admitted into evidence during the trial, and Eagleman's counsel did not object to their admission or request a curative instruction.The Korzeniowskis called a physiatrist, Dr. Lichtblau, to testify. Dr. Lichtblau was called upon to estimate the expenses that would be incurred for Luke Korzeniowski's care throughout his life and addressed government aid in his testimony on cross-examination.Eagleman's counsel later called a medical doctor, Dr. Nathanson-Lippitt, who specializes in developmental neurology and pediatric rehabilitation, and who conducted an IME on Luke Korzeniowski. Dr. Nathanson-Lippitt testified on direct examination regarding the availability of governmental aid and a discussion between counsel and the trial court ensued relating to government services in Hawaii, where the Korzeniowskis were considering moving. The trial court sustained the Korzeniowskis' objection relating to Dr. Nathanson-Lippitt's testimony, as it was new information not previously disclosed nor contained in her report.A hearing was held on a motion for directed verdict filed by Bethesda, at which time Bethesda's counsel asserted that a directed verdict was appropriate because Eagleman was not an agent of Bethesda and because the evidence did not establish corporate negligence on Bethesda's part for failure to properly supervise Eagleman. Eagleman's counsel indicated that Eagleman was not involved with the motion for directed verdict and would not be taking a position on the motion. The trial court denied Bethesda's motion for directed verdict on the corporate negligence issue and reserved ruling on Bethesda's motion for directed verdict on the agency issue until after the jury verdict.Bethesda renewed its motion for directed verdict at the close of the defense case. The trial court declined to rule on the motion at the time. Bethesda also renewed its motion for directed verdict at the close of evidence, and the trial court renewed its ruling.The trial court and counsel then considered proposed jury instructions, including Bethesda's request for a comparative negligence jury instruction. The trial court rejected the proposed jury instruction. The trial court then instructed the jury regarding the agency issue and the corporate negligence issue. Eagleman did not object to either of these instructions.The jury found that Eagleman was negligent, that Eagleman was an agent of Bethesda, and that Bethesda was negligent. The jury found that the present value of Luke Korzeniowski's future medical expenses was $30,000,000 and that his other compensatory damages amounted to $17,000,000. Jennifer and Derik Korzeniowski were awarded $2,000,000 in medical expenses. The jury then determined that Luke Korzeniowski suffered a permanent total disability and awarded Jennifer and Derik Korzeniowski $7,000,000 each in damages for loss of consortium.Following the trial, Bethesda filed a Motion for Renewed Directed Verdict. Bethesda reasserted that a directed verdict was appropriate because Eagleman was not an agent of Bethesda and the evidence failed to establish corporate negligence on Bethesda's part. Bethesda also filed a Motion for Judgment Notwithstanding Verdict focusing on the same grounds. Bethesda additionally filed a Motion for New Trial. In it, Bethesda alleged a multitude of errors, including that the trial court improperly precluded the jury from apportioning fault between Eagleman and Bethesda, that the trial court improperly precluded evidence of free medical care available to the Korzeniowskis, and that the trial court improperly denied Bethesda's motions for summary judgment and directed verdict.The trial court then entered a written order on Bethesda's motion for directed verdict regarding agency. The trial court noted that Bethesda moved for directed verdict at the close of the plaintiffs' case, at the close of the defense's case, and at the close of evidence, and that the trial court deferred ruling on the matter at each time. The trial court then concluded that Eagleman was merely a member of Bethesda's staff and not an agent of Bethesda, so that Bethesda was not vicariously liable for Eagleman's actions. The trial court granted Bethesda's motion for directed verdict.The trial court then entered three final judgments against Eagleman and Eagleman, M.D., P.A., one for each of the Korzeniowskis. This appeal and cross-appeal ensued (although the Korzeniowskis raised no issues on cross-appeal).The issues raised on appeal are as follows:A. THE TRIAL COURT ERRED BY FAILING TO RULE EITHER BEFORE OR DURING TRIAL THAT EAGLEMAN WAS NOT AN AGENT OF THE HOSPITAL AND ERRONEOUSLY INSTRUCTED THE JURY ON THAT ISSUE.B. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE THAT THE KORZENIOWSKIS WERE ENTITLED TO RECEIVE FREE GOVERNMENT SERVICES FOR CERTAIN FUTURE DAMAGES THEY CLAIMED.C. THE TRIAL COURT ERRED BY FAILING TO EXCLUDE EVIDENCE OF EAGLEMAN'S PRIOR DISPUTE WITH AHCA IN AN UNRELATED MATTER.This Court is unable to review these issues because they were not preserved for appellate review. For an issue to be preserved by a defendant in a case involving co-defendants, that defendant must object or that defendant must join in the objection of the other defendant. See Jorquera v. State, 868 So. 2d 1250, 1252 (Fla. 4th DCA 2004); see also So. Puerto Rico Sugar Co. v. Tem-Cole, Inc., 403 So. 2d 494, 495 (Fla. 4th DCA 1981) (“Our analysis impels us to hold that appellant is subject to the general rule which precludes a party from complaining on appeal of errors which were not raised or objected to in the trial court.”).As to Eagleman's claim that the trial court erred by failing to rule on the agency issue, this issue is not preserved for appellate review. Both the motion for directed verdict and the proposed jury instruction on agency were filed by Bethesda. Eagleman did not join in the motion for directed verdict, object to the fact that a directed verdict was not granted or that the trial court reserved ruling on the matter, object to the trial court's handling of the agency issue, or object to the proposed jury instructions. In fact, Eagleman's counsel indicated that Eagleman was not involved with the motion for directed verdict and would not be taking a position on the motion. Essentially, Eagleman's argument on appeal is that although he took no position when the agency issue was before the trial court, he now believes that the trial court erred by reserving ruling on the motion for directed verdict and should have granted the directed verdict during trial (even though not granting the directed verdict was advantageous to Eagleman at that time). Furthermore, now that the trial court granted the directed verdict post-trial, Eagleman is taking a position on the motion for directed verdict and arguing that granting it was error because it is no longer advantageous to Eagleman. If it was important to Eagleman that a directed verdict be granted (or denied) to resolve the agency issue and remove the risk of any negative impact from the post-trial resolution of that issue, it was incumbent upon Eagleman to seek to secure a ruling on that issue prior to the jury verdict. It defies logic for a party to expect to be able to take no position on an issue in the trial court and then take whatever position is most advantageous to it on appeal; a party must take some position below in order for this court to review how the trial court ruled on that position. See Brazill v. State, 845 So. 2d 282, 290 (Fla. 4th DCA 2003) (“The requirement of an objection at trial avoids ‘the creation of “gotchas” whereby the defense is allowed to sit on its rights, saying nothing until after it sees whether the jury returns an adverse verdict.' ”) (citation omitted).As to Eagleman's claim that the trial court erred by excluding evidence regarding free government services for future damages, this issue is not preserved for appellate review. In order to be preserved for appellate review, the specific argument made on appeal must have been raised when the party objected in the trial court. See Centex-Rooney Constr. Co. v. Martin County, 706 So. 2d 20, 27 (Fla. 4th DCA 1997) (citing Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)). At trial, Eagleman asserted that the Korzeniowskis' cross-examination of Dr. Nathanson-Lippitt opened the door for her to testify about the availability of governmental aid in Hawaii. However, the argument raised on appeal is that the door was opened for Dr. Nathanson-Lippitt's testimony regarding the services available in Hawaii by the cross-examination questioning (by Eagleman's counsel) of Dr. Lichtblau regarding the services that Luke Korzeniowski had obtained in the past. Therefore, the specific issue raised on appeal was not raised in the trial court, because the two arguments presented involved different bases for the door opening to admission of the evidence.Finally, as to the issue regarding the trial court's failure to exclude evidence of Eagleman's prior AHCA complaint, this issue is not preserved for appellate review. Although Eagleman objected to the use of the AHCA records prior to the opening argument in which they were used, the trial court did not rule on their admissibility at that time and instructed Eagleman's counsel that when it did rule he could request a curative instruction. Then when the documents were ultimately admitted into evidence, Eagleman's counsel indicated that he had no objection to their admission and did not request a curative instruction. As such, Eagleman did not secure a ruling regarding his initial objection, and when a ruling was made, indicated that he had no objection, thereby abandoning his previous objection.Accordingly, by Eagleman's failure to raise objections at trial, he deprived the trial court of the opportunity to make substantive rulings on the very issues he now raises in this appeal. Consequently, the jury verdict and final judgment are AFFIRMED.Affirmed. (Polen and May, JJ., concur.)Torts -- Medical malpractice -- Discovery -- Adverse medical incidents -- Patients' Right to Know -- Petition for certiorari review of trial court's determination that article X, section 25, Florida Constitution, is self-executing was rendered moot by adoption of legislation designed to implement this constitutional provision -- Petition dismissed as mootBAYFRONT MEDICAL CENTER, INC., Petitioner, v. TROY D. NEAVINS, SR., Respondent. 2nd District. Case No. 2D05-1824. Opinion filed. February 10, 2006. Petition for Writ of Certiorari to the Circuit Court for Pinellas County; Anthony Rondolino, Judge. Counsel: Thomas M. Hoeler and Kenneth A. Beytin of Burton Schulte, Weekley, Hoeler, McLaughlin & Beytin, P.A., Tampa, for Petitioner. Dock A. Blanchard of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, James W. Clark of Clark & Martino, P.A., Tampa, and Bruce D. Austin of Austin, Ley, Roe & Patsko, P.A., St. Petersburg, for Respondent.(CANADY, Judge.) In this certiorari proceeding, Bayfront Medical Center, Inc., seeks review of a trial court order denying, in part, its motion for protective order in a medical malpractice action brought by Troy D. Neavins, Sr. In ruling on Bayfront's motion for protective order, the trial court determined that article X, section 25 of the Florida Constitution -- the “Patients' Right-to-Know About Adverse Medical Incidents” amendment -- is self-executing. The sole issue raised in Bayfront's certiorari petition is whether this constitutional provision is not self-executing but requires legislative implementation. Bayfront contends that the provision requires legislative implementation because it “raises too many significant policy questions and practical considerations” to meet the test set forth in Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960), that a constitutional provision “should be construed to be self-executing” only if “the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment.”The trial court's order on the motion for protective order was entered in March 2005, and Bayfront's certiorari petition was filed in April 2005. On June 20, 2005, however, the “Patients' Right-to-Know About Adverse Medical Incidents Act” -- now codified in section 381.028, Florida Statutes (2005) -- became law. See ch. 2005-265, § 2, at 2416, Laws of Fla. This legislation has the stated purpose of implementing article X, section 25 of the Florida Constitution. § 381.028(2).In view of the adoption of legislation designed to implement article X, section 25, we ordered that Bayfront show cause why this proceeding should not be dismissed because the issue presented has become moot. Bayfront has failed to show that the adoption of implementing legislation has not rendered moot its argument that the trial court erred in determining that the constitutional provision does not require implementing legislation. Although various issues may arise concerning the proper application of the implementing legislation and the relationship between that legislation and the constitutional provision, those issues are not presented for review in this proceeding. No purpose will be served by our deciding the sole issue presented for our review -- that is, whether the constitutional provision is self-executing. Cf. Bd. of Pub. Instruction v. Budget Comm'n, 249 So. 2d 6 (Fla. 1971) (holding that challenge to validity of statute was rendered moot by repeal of statute).We therefore dismiss the petition for writ of certiorari as moot.Petition dismissed. (WHATLEY and SALCINES, JJ., Concur.)Civil procedure -- Dismissal -- Torts -- Medical malpractice -- A trial court may dismiss a civil action as result of plaintiff's attorney's misconduct during course of litigation where consideration of all factors discussed by supreme court in Kozel v. Ostendorf point to dismissal except there is no evidence that client was personally involved in act of disobedience -- Factors in instant case weigh heavily in favor of dismissal and support trial court's order directing verdict against plaintiff and in favor of defendant physiciansBEATRICE ROSE, Appellant, v. MICHAEL W. FIEDLER, M.D.; CHARLES M. FISCHMAN, M.D.; FISCHMAN & BORGMEIER, M.D., P.A.; OMAR DAVID HUSSAMY, M.D.; OMAR D. HUSSAMY, M.D., P.A.; and COASTAL ORTHOPEDIC CENTER, Appellees. 4th District. Case No. 4D01-2856. February 15, 2006. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Scott M. Kenney, Judge; L.T. Case No. 97-430 CA01. Counsel: Donald Alan Tobkin, and Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, for appellant. Jennifer S. Carroll and Diane F. Medley of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, and Lewis W. Murphy of Moss, Henderson, Blanton, Lanier, Kretschmer & Murphy, P.A., Vero Beach, for appellees Charles M. Fischman, M.D., and Fischman & Borgmeier, M.D., P.A. Robert D. Henry of Ringer, Henry, Buckley & Seacord, P.A., Orlando, for appellees Omar David Hussamy, M.D., Omar D. Hussamy, M.D., P.A., and Coastal Orthopedic Center.On Mandate From The Supreme Court (Stevenson, C.J.) This case initially came to this court when a medical malpractice plaintiff appealed from a directed verdict entered in favor of the defendant physicians as a sanction for her trial counsel's misbehavior. Upon review, we held the record did not support a finding that the plaintiff herself participated in the misconduct and, absent such client participation, the imposition of a sanction that was tantamount to dismissal was simply too extreme. See Rose v. Fiedler, 855 So. 2d 122 (Fla. 4th DCA 2003) (hereinafter Rose I). Our holding was predicated upon this district's earlier opinion in Schlitt v. Currier, 763 So. 2d 491 (Fla. 4th DCA 2000), wherein we interpreted Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993),1 as requiring client participation in the misconduct as a prerequisite to the imposition of a sanction as severe as dismissal. Despite our holding, we certified to the supreme court the following question: “May a trial court dismiss a civil action as the result of the plaintiff's attorney's misconduct during the course of the litigation where a consideration of all of the Kozel factors point to dismissal except that there is no evidence that the client was personally involved in the act of disobedience?” 855 So. 2d at 128.Subsequent to the issuance of our opinion in Rose I, the supreme court disapproved Schlitt's holding that client participation was a predicate to imposition of a sanction as severe as dismissal and held all six of the Kozel factors must be considered with emphasis placed on the matter of prejudice. See Ham v. Dunmire, 891 So. 2d 492, 497, 502 (Fla. 2004). Our supreme court found the subsequently rendered decision in Ham had addressed the essence of the question certified in Rose I, quashed the decision in Rose I, and remanded the matter for reconsideration in light of Ham. See Hussamy v. Rose, 916 So. 2d 785 (Fla. 2005). We have reconsidered the matter as instructed and now affirm the sanction imposed by the trial court. As detailed in our prior opinion, “all of the factors discussed in Kozel, except for one [personal involvement of the client], weigh heavily in favor of dismissal,” see Rose I, 855 So. 2d at 126-27, and support the trial court's order directing a verdict against the plaintiff and in favor of the defendant physicians.2 Accordingly, the judgment on review is affirmed.Affirmed. (Warner and Taylor, JJ., concur.)__________________1In Kozel, counsel for the plaintiff failed to file an amended complaint within the time frame ordered by the trial court; consequently, the trial judge dismissed the plaintiff's case with prejudice. The supreme court held that the sanction of dismissal should be reserved for those instances where “a lesser sanction would fail to achieve a just result” and remanded the case to the trial court to reconsider the appropriate sanction in light of the following six factors: “1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.” 629 So. 2d at 818.2In her special concurrence in Rose I, Judge Warner candidly stated that “[w]ere it not for Schlitt,” she would affirm the trial court's ruling. 855 So. 2d at 129.Torts -- Punitive damages -- Appellate court does not have certiorari jurisdiction to review trial court's order granting motion to amend complaint to add claim for punitive damages where court permitted amendment after evidentiary hearing -- Maritime law -- Court notes that punitive damages are precluded in personal injury actions brought under general maritime law except in cases involving intentional wrongdoingCARNIVAL CORPORATION, d/b/a CARNIVAL CRUISE LINES, Petitioner, vs. NELSON ISCOA, Respondent. 3rd District. Case No. 3D05-2125. L.T. Case No. 02-14987. Opinion filed March 1, 2006. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lawrence A. Schwartz, Judge. Counsel: Mase, Gassenheimer & Lara and Beverly D. Eisnestadt, for petitioner. Joel S. Perwin; Lisa Hehner, for respondent.(Before WELLS, and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.)(WELLS, Judge.) Carnival Cruise Lines seeks certiorari review of a non-final order granting Nelson Iscoa's motion to amend his complaint to add a claim for punitive damages. While we have grave misgivings about both Iscoa's entitlement to advance this claim under maritime law and his ability to sustain a punitive damage award on final review, we deny the petition.Iscoa brought suit to recover for injuries he allegedly sustained when he fell down an open staircase while a passenger on board Carnival Cruise Line's M/V Destiny. After Iscoa learned that other passengers aboard the same vessel had been involved in similar falls, he sought to amend his complaint to state a claim for punitive damages. Carnival opposed the motion claiming that as a matter of maritime law, Iscoa could not maintain a punitive damages claim and that the evidence did not support such a claim. Following an evidentiary hearing, Iscoa was permitted to amend to claim punitive damages. Carnival timely petitioned for a writ of certiorari to review that order.As the Supreme Court explained in Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995):appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72. Certiorari is not available to review a determination that there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.Here, the trial court conducted the evidentiary hearing and thereafter Iscoa was permitted to amend his complaint to make a claim for punitive damages. Thus, relying upon the analysis set out in Globe, we do not have certiorari jurisdiction to review the trial court's decision to permit the amendment.We note, however, that in In re Amtrack “Sunset Ltd.” Train Crash in Bayou Canot, Alabama, on September 22, 1993, 121 F.3d 1421 (11th Cir. 1997), the Eleventh Circuit held that punitive damages are precluded in personal injury actions brought under general maritime law except in cases involving intentional wrongdoing:personal injury claimants have no claim for nonpecuniary damages such as loss of society, loss of consortium or punitive damages, except in exceptional circumstances such as willful failure to furnish maintenance and cure to a seaman, intentional denial of a vessel owner to furnish a seaworthy vessel to a seaman and in those very rare situations of intentional wrongdoing.In re Amtrak Sunset Ltd. Train Crash, 121 F.3d at 1429 (emphasis added). Based on the limited record before us, we have serious doubts that the “very rare” exception recognized by the Eleventh Circuit is implicated here. We are, however, nonetheless bound to deny the writ on the analysis set out above. See Globe, 658 So. 2d at 519; Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987) (stating “we cannot agree that certiorari is a proper vehicle for testing denial of a motion to strike a claim for punitive damages”); but see Chemplex Fla. v. Norelli, 790 So. 2d 547, 549 (Fla. 4th DCA 2001) (granting certiorari and quashing an order granting leave to amend to state a claim for punitive damages because a “plaintiff in a shareholder's derivative action against officers and directors of corporation cannot recover punitive damages in the absence of any statutory authority”); McGuire, Woods, Battle & Boothe, L.L.P. v. Hollfelder, 771 So. 2d 585, 586 (Fla. 1st DCA 2000) (granting certiorari and quashing an order denying a motion to strike a punitive damages claim because punitive damages are not available in shareholder derivative actions); Ortega v. Silva, 712 So. 2d 1148, 1149 (Fla. 4th DCA 1998) (explaining that “[a]llowing a claimant to seek punitive damages as part of a claim in which such exemplary damages are unavailable as a matter of law, is tantamount to allowing them without determining whether there is an evidentiary basis for them”); Nova Southeastern University v. McCollough, 693 So. 2d 1125, 1125-26 (Fla. 4th DCA 1997) (granting certiorari and quashing an order granting leave to amend to add a prayer for punitive damages concluding that “no evidence in the record could have provided a reasonable basis for the recovery of” such damages on a vicarious liability claim where no independent fault had been alleged).The petition is denied.Wrongful death -- Strict liability -- Seller of a used and reconditioned motor home cannot be sued in strict liability on the ground that the motor home is defective and unreasonably dangerous -- Question certified: Can a Florida Court impose strict liability on the seller of a used and reconditioned motor vehicle that is defectively designed and unreasonably dangerous?CAROL CATALDO, as Personal Representative of the Estate of CARL CATALDO, deceased, Appellant, v. LAZY DAYS R.V. CENTER, INC., a Florida corporation, and BEAVER COACHES, INC., a foreign corporation, Appellees. 2nd District. Case No. 2D04-3904. Opinion filed February 10, 2006. Appeal from the Circuit Court for Hillsborough County, Sam D. Pendino, Judge. Counsel: Joel D. Eaton, Miami, and Wagner, Vaughn & McLaughlin, P.A., Tampa, for Appellant. Tracy Raffles Gunn of Fowler White Boggs Banker, P.A., Tampa, for Appellee.(CASANUEVA, Judge.) This appeal presents an issue of first impression in this court: whether a seller of a used and reconditioned motor home can be sued in strict liability under section 402A of the Restatement (Second) of Torts on the ground that it is defective and unreasonably dangerous. We decline to extend strict liability to those who do business in used motor vehicles. The supreme court, however, can exercise its common-law power to adopt such a doctrine to ensure statewide uniformity of law, as in West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976). Therefore, we certify the following question of great public importance, which we answer in the negative:CAN A FLORIDA COURT IMPOSE STRICT LIABILITY ON THE SELLER OF A USED AND RECONDITIONED MOTOR VEHICLE THAT IS DEFECTIVELY DESIGNED AND UNREASONABLY DANGEROUS?Facts of this CaseLazy Days R.V. Center, Inc., sells new and used recreational vehicles and motor homes. Advertising itself as the “world's largest” R.V. dealer, the company deals in nineteen different product lines. Although a number of factory representatives are located on the premises, the manufacturer of the vehicle at issue apparently did not have an on-site representative at the time of sale.On April 2, 2000, Carl Cataldo and his wife, Carol, purchased a used 1988 motor home from Lazy Days for over $50,000. Beaver Coaches, Inc., which designed and manufactured the motor home that is the subject of the instant litigation, had been declared bankrupt by the time this lawsuit was commenced. Lazy Days had taken possession of this particular motor home as a trade. Lazy Days' usual practice is to perform extensive inspections on vehicles both at the time they are received in trade and prior to delivery on resale to insure that the systems are working properly. This particular motor home apparently underwent two separate pre-delivery inspections and several walk-through inspections prior to sale, which resulted in some reconditioning of the vehicle but did not affect the retractable steps that ultimately caused Mr. Cataldo's injuries.At the time of sale, Lazy Days provided the Cataldos with a thirty-day limited warranty covering certain specified items and expressly excluding all other items. Additionally, the motor home sale contract specifically excluded various implied warranties, including those of merchantability and fitness for a particular purpose, as well as all other express and implied warranties.On the night of the accident, which occurred some nineteen months after the Cataldos had purchased the vehicle, Mr. and Mrs. Cataldo were watching television in the motor home in the early evening hours when Mrs. Cataldo's mother sought entrance from the outside. Because it was dark outside, Mr. Cataldo turned on the lights while opening the door. At the same time, he also inadvertently engaged the switch operating the steps to the motor home, which caused the steps to retract, either partially or fully. Later, Mr. Cataldo stepped through the door, expecting that the steps had remained in the extended position. He fell and sustained serious injuries, which led to his death approximately one month later.Mr. Cataldo's Estate filed a strict liability claim against Lazy Days for an alleged design defect. The complaint alleged that the switch operating the retractable steps was located “along with three (3) other switches inside the motor home near the entrance to the motor home. It was located adjacent to three (3) identical switches which controlled the living room lights, the kitchen lights and the porch lights.” The complaint further alleged that Lazy Days had sold the motor home containing a defective and unreasonably dangerous condition that was the cause of Mr. Cataldo's death and the Estate's damages. The dangerous defect was alleged to have originated with Beaver Coaches, Inc., which designed the motor home so that the operating mechanism of the steps did not possess either a visible or audible warning that the steps were not extended when the exterior door to the motor home was opened. Another alleged design defect consisted of the omission of a protective device or mechanism to prohibit the retraction function of the steps from inadvertent engagement.At the time of Mr. Cataldo's fall, the vehicle was in excess of ten years old; it had been manufactured and designed by a party other than Lazy Days; and the work done on the motor home by Lazy Days was not alleged to be the cause of Mr. Cataldo's injuries.Upon motion by Lazy Days, the trial court entered a final summary judgment against the Estate, concluding that Florida law does not provide a cause of action in strict liability against a seller of a used product for an alleged design defect. In this appeal, the Estate urges this court to recognize or create such a cause of action or, alternatively, to certify the issue to our supreme court. We decline to do the former; we grant the latter.Brief History of the Strict Liability TheoryEarly in the twentieth century, New York's highest court, the Court of Appeals, characterized the trend of judicial thought on strict liability at that time in the case of MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916). Buick Motor Co. had manufactured and sold an automobile to a retailer, which, in turn, sold it to Mr. MacPherson. The wooden wheels of the car were manufactured by a different company. Because one of the wheels was made of defective wood, the car suddenly collapsed. Mr. MacPherson was ejected from the vehicle and injured.Answering the question of whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser, Justice Cardozo wrote:If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract.MacPherson, 217 N.Y. at 389.Analyzing the facts of this case in the context of this operative language from MacPherson, we note at the outset that MacPherson applied to a manufacturer that initially placed a product into the stream of commerce. Here, the parties do not dispute that Lazy Days is not the manufacturer of the product and that it did not introduce the motor home into the marketplace. Instead, the Estate seeks to extend the rule to encompass all those who engage in the economic activity of selling used goods.1Next, we note that in Florida motor vehicles are classified as dangerous instrumentalities. S. Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920). Because it is a vehicle, the motor home comes within the dangerous instrumentality classification and “is reasonably certain to place life and limb in peril when negligently made.” MacPherson, 217 N.Y. at 389. However, a motor home functions as both a vehicle and a residence, and in this case the risk of physical injury to the plaintiff arose from its function as a home.Strict liability in tort arrived in Florida in 1976. In West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976), the Supreme Court of Florida, in a unanimous decision, adopted the doctrine of strict liability as stated by the Restatement (Second) of Torts § 402A. West held that a manufacturer is strictly liable in tort “when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” Id. at 86.As in MacPherson, the language in West focuses upon the manufacturer, which, “by placing on the market a potentially dangerous product for use and consumption and promotion encouraging the use of these products, thereby undertakes a certain and special responsibility toward the consuming public who may be injured by it.” West, 336 So. 2d at 86. Furthermore, “[i]n today's world it is often only the manufacturer who can fairly be said to know and understand when an article is suitably designed and safely made for its intended purpose.” Id. at 88.Refusal of Florida's District Courts of Appealto Extend Strict Liability DoctrineThe argument that strict liability in tort should be extended to the seller of a used product has been considered and rejected by two district courts of appeal. In 1980, the First District declined to extend the doctrine of strict liability to the commercial sale of a used automobile. In Fuquay v. Revels Motors, Inc., 389 So. 2d 1238 (Fla. 1st DCA 1980), John Fuquay was killed when his Ford sedan, purchased from Revels Motors, exploded in flames after a rear-end collision. The First District declined to impose strict liability on the seller of the used car, who bears “no responsibility for the placement of the automobile into the stream of commerce. A vendor so removed from the original marketing chain is unable to exert any significant influence on the manufacturer . . . .” Id. at 1240.Following Fuquay, the Fifth District, in Masker v. Smith, 405 So. 2d 432 (Fla. 5th DCA 1981), reviewed the dismissal of a complaint alleging that the seller of a used 1957 automobile was strictly liable for the buyer's injuries. The buyer contended that the seller had created an unreasonable risk of harm by placing the car on the market with a defect in the braking system. The trial court granted a summary final judgment against the buyer. The Fifth District affirmed, finding no basis to extend the West doctrine to the seller of used goods. Noting that in West, 336 So. 2d at 90, the supreme court had observed that the doctrine of strict liability does not operate to make the manufacturer or seller an insurer, the court in Masker held: “Imposing liability on the seller of used or second hand goods for latent defects for which he is not responsible and which he could not discover by the exercise of reasonable care would make such dealer a virtual insurer against every kind of defect.” 405 So. 2d at 434 (citing Fuquay, 389 So. 2d at 1238).A slightly more recent case, also out of the Fifth District, involved a bakery employee who injured her hand upon a slicer. In Keith v. Russell T. Bundy & Assoc., 495 So. 2d 1223 (Fla. 5th DCA 1986), Bundy, a dealer of used bakery equipment, sold a roll-slicing machine “as is” to Mrs. Keith's employer. When Mrs. Keith injured her hand, she sued Bundy as the seller of the defective slicer, alleging that Bundy was strictly liable for her injuries because it knew or should have known that the slicer was unreasonably dangerous yet failed to make the machine safe. Reversing the trial court's denial of Bundy's motion for directed verdict on the strict liability count, the court held as follows:In the instant case, Bundy sold a used slicer “as-is” to Golden Loaf. The alleged defect, the missing interlock, was not on the original slicer manufactured by Alto in 1963, and was not in fact added until some 13 years later. The evidence showed that Bundy was unaware of the changes prior to the accident, and that Alto had never sent it any memorandum regarding the changes in design. The policies underlying the imposition of strict liability are not present here, and Bundy, as a dealer in used goods, should not be held strictly liable for a defect, if any, caused by the manufacturer.495 So. 2d at 1228.Given that no Florida case has subsequently eroded the holdings in Fuquay, Masker, and Keith, it appears that the principle that a seller of used goods is not strictly liable for a design defect that ultimately injures the purchaser of the product is firmly entrenched in Florida jurisprudence. We agree with this rationale and observe that were we to conclude otherwise, this theory of liability would exist only in this court's geographic jurisdiction but would be barred in other parts of the state.The Contrary ViewNo national consensus exists on the refusal to extend strict liability claims to the sellers of used goods. Some states allow the claims in some instances.2 Particularly instructive, in the Cataldos' view, is the Connecticut case of Stanton v. Carlson Sales, Inc., 728 A.2d 534 (Conn. Super. Ct. 1998), which extended strict liability in tort to the seller of a used industrial punch press that severely injured an employee of the company to which it was sold.The Stanton court thoroughly analyzed the arguments for and against extending strict liability to the seller of a used machine against the backdrop of its own state decisional and statutory law. The court observed that the Connecticut Supreme Court's “recorded decisions have not distinguished the sale of used goods from that of new goods.” Id. at 534. Furthermore, the court also noted that Connecticut General Statute section 52-572n(a), which provides for products liability actions, “does not distinguish between sellers of new and used products,” but the legislature could have done so if it desired.3 Id. at 537. Finally, the Stanton court observed that the section 402A of the Restatement (Second) of Torts, which it described as “the foundation stone of Connecticut products liability law,” imposes strict liability on one who sells any unreasonably dangerous product in a defective condition without distinguishing between sellers of new or used goods. Id. at 540. Particularly noteworthy is comment (c) of section 402A:On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.2 Restatement (Second) of Torts, § 402(A), comment (c), quoted in Stanton, 728 A.2d at 541-42.Thus, ultimately, the reasons for extending liability to the sellers of used products is economic: the seller “is in the best position to distribute the costs of the risk created by the defective product it has sold.” Id. at 543-44 (quoting Nelson v. Nelson Hardware, Inc., 467 N.W.2d 518, 524 n.6 (Wis. 1991)). The seller can pass along the added costs by raising the price of the product, and the increased price can also help the seller absorb the cost of liability insurance should it choose to purchase it.In addition to economic considerations, public policy reasons for imposing strict liability on the sellers of used goods are grounded in the concept of fairness. Here, the Stanton court makes a distinction that is relevant to this case. In Stanton the injured party was a worker at a manufacturing concern; the worker himself had no role in the economic transactions leading to the company's purchase of the press he operated. For the “bystander victim of a defective product, the doctrine of caveat emptor makes no sense whatsoever.” Stanton, 728 A.2d at 548. Such bystander victims are in “precisely the same position as persons injured by defective new products.” Id. In such situations, “to use Justice Cardozo's famous words, ‘to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser,' those responsible for putting a dangerous product on the market have a special responsibility imposed by law.” Id. at 548-49 (quoting MacPherson, 217 N.Y. at 389).In this case, however, the Cataldos were not bystander victims but were direct purchasers of the motor home. Unlike the purchaser of a new motor home, who can realistically assume that the vehicle has no design flaws and will operate safely and properly, the Cataldos' expectations were limited. For the Cataldos, “the ancient doctrine of caveat emptor makes at least some intuitive sense.” Id. at 548.Certified QuestionThe rationale for imposing strict liability on the sellers of used products is well explicated by the Stanton court. This court, however, is guided by the decisions of the First and Fifth District Courts of Appeal, whose rationale we adopt. Therefore, we decline to overturn the trial court's summary judgment against the Cataldos on its strict liability claim and hold that a Florida court cannot recognize a cause of action in strict liability by the purchaser of a used motor home against the seller. We do, however, certify the following question to the Florida Supreme Court as one of great public importance:CAN A FLORIDA COURT IMPOSE STRICT LIABILITY ON THE SELLER OF A USED AND RECONDITIONED MOTOR VEHICLE THAT IS DEFECTIVELY DESIGNED AND UNREASONABLY DANGEROUS?We answer the question in the negative and affirm the decision on appeal in all respects. (SALCINES and STRINGER, JJ., Concur.)__________________1We observe that, because of economic forces in the marketplace, many sellers of used vehicles will advertise and offer limited warranties, so a consumer has a choice to negotiate for such a warranty.2See Tracey A. Bateman, Annotation, Products Liability: Application of Strict Liability Doctrine to Seller of Used Product, 9 A.L.R. 5th 1 (2005).3Because it is of only marginal relevance here, this opinion omits any discussion of the Stanton court's extensive analysis of the policies and history of the Connecticut products liability statute.Torts -- Automobile accident involving seventeen people and seven vehicles -- Civil procedure -- Consolidation -- Mere fact that separate actions arise out of same motor vehicle accident does not mandate consolidation -- Trial court did not depart from essential requirements of law by denying defendants' amended motion to consolidate instant case with three other cases growing out of same accident COMMERCIAL CARRIERS CORPORATION, ET AL., Petitioner, v. KESTER RAY KELLEY, JR., ET AL., Respondent. 5th District. Case No. 5D06-37. Opinion filed February 10, 2006. Petition for Certiorari Review of Order from the Circuit Court for Putnam County, A.W. Nichols, III, Judge. Counsel: E.T. Fernandez, III of Inman & Fernandez, P.A., Jacksonville, for Petitioner. No Appearance for Respondent.(MONACO, J.) In a pending personal injury accident growing out of a multi-vehicle collision, the petitioners, Commercial Carriers Corporation and Linda Sue Faulkner, who are defendants below, seek certiorari review of the trial court's order denying their amended motion to consolidate the instant case with three other cases growing out of the same accident. Because we find no abuse of discretion on the part of the trial court, we deny the petition.The primary reason asserted by the petitioners for the consolidation is to “avoid the prejudicial [sic] unfair and cost prohibitive results of separate trials.” They argue, as well, that judicial economy would be served by a consolidation and that the trial judge should, therefore, be ordered to consolidate these cases.While an order denying a motion to consolidate is reviewable by certiorari, the ruling rests within the sound discretion of the trial court. Indeed, rule 1.270(a), Florida Rules of Civil Procedure, the rule governing consolidation, notes specifically that when actions involve common questions of law or fact, the court “may” order a joint trial, or “may” order consolidation, or “may” make such other orders as “may” tend to avoid unnecessary costs or delay. That discretion should not be disturbed absent an abuse of discretion. See State Farm Florida Ins. Co. v. Bonham, 886 So. 2d 1072, 1074 (Fla. 5th DCA 2004).The mere fact that separate actions arise out of the same motor vehicle accident does not mandate a consolidation. See Pages v. Dominguez By & Through Dominguez, 652 So. 2d 864 (Fla. 4th DCA 1995). A petitioner seeking certiorari relief from a non-final order must still show a departure from the essential requirements of law which results in a material injury that cannot be rectified on final appeal. See Bonham; Lynch v. State, 409 So. 2d 133 (Fla. 5th DCA 1982).Here, the accident, which is described by the petitioners as “highly complex and catastrophic,” involves seventeen people and seven vehicles. The trial court said at the hearing in which it denied the motion of the petitioners that consolidation would be impractical because the trial of one case was imminent, while the trials of others were not. Some cases were years old, while some had been filed less than sixty days earlier. Some had extensive discovery, some had virtually none. Consolidation might well have required a continuance of the already scheduled trial. A trial court needs to have the flexibility to manage its docket and balance the needs and expectations of the parties before it. As the exercise of discretion here was sound, we see no departure from the essential requirements of law in the denial of the motion.Accordingly, the petition for certiorari is denied.DENIED. (THOMPSON and PALMER, JJ., concur.)Wrongful death -- Workers' compensation immunity -- Action against owner of motorcycle alleging owner caused or contributed to decedent's death by negligently allowing decedent to operate motorcycle, even though decedent was unlicensed to operate motorcycle and unable to operate it safely -- Decision by owner of motorcycle, who was decedent's employer, to allow decedent to drive motorcycle from jobsite back to company office was a managerial decision -- Decision to send decedent back to office was clearly managerial, and mode of transportation defendant chose to accomplish that task was incidental to the business purpose served by this decision -- Court notes that complaint really sets forth claim of negligent entrustment of motor vehicle against owner of motorcycle, and owner of vehicle is not liable for injuries sustained by bailee to whom he entrusted the motor vehicle because of the bailee's negligent operation of itDAVID M. WOODSON, Appellant, v. SHIRLEY IVEY, MOTHER AND PERSONAL REPRESENTATIVE, ETC., Appellee. 5th District. Case No. 5D04-3326. Opinion filed December 30, 2005. Appeal from the Circuit Court for Citrus County, Patricia Thomas, Judge. Counsel: Gregory D. Jones, Collins Guyton and Kerry McGuinn, Jr., of Rywant, Alvarez, Jones, Russo & Guyton, P. A., Tampa, for Appellant. John G. Crabtree, of John G. Crabtree, P. A., Key Biscayne; Edward L. Scott of Edward L. Scott, P. A., Ocala; and George R. Baise, Jr., of George R. Baise, Jr., P. A., Bradenton, for Appellee.(ORFINGER, J.) David M. Woodson appeals from a final judgment in favor of Shirley Ivey, Personal Representative of the Estate of Christopher G. Tenner, in a wrongful death action. On appeal, Woodson argues that the trial court erred by denying his motion for summary judgment and his motion to set aside the verdict and for entry of a judgment in accordance with his motion for directed verdict. For the reasons set forth hereafter, we reverse.Christopher was tragically killed in a traffic accident involving the motorcycle he was driving and a truck. Christopher's mother, Shirley Ivey, filed a wrongful death suit on behalf of Christopher's estate against Woodson, the owner of the motorcycle. In that action, Ivey alleged that Woodson caused or contributed to Christopher's death by negligently allowing Christopher to operate the motorcycle, even though Christopher was unlicensed to operate a motorcycle and was unable to operate it safely. Woodson's primary defense was to assert worker's compensation immunity pursuant to section 440.11(1), Florida Statutes (2002).Much of the evidence presented at trial was undisputed. Woodson is the owner/manager of Keepit-Safe Security Storage Systems, Ltd., a moving and storage company. Keepit-Safe employed twenty-four-year-old Christopher, as well as a half-dozen or so other employees, few of whom had commercial driving licenses that allowed them to drive large moving trucks. Helpers like Christopher accompany the drivers to load and unload the trucks. The employees are paid hourly for their work and for travel time between the company offices and moving job locations.1On the day that Christopher died, Keepit-Safe had a job moving a customer that required four employees and two trucks, a larger truck owned by Keepit-Safe and a smaller truck rented from a truck rental franchise. Because one of the company's few drivers with a commercial driver's license had his license suspended for a DUI offense the previous day and was, therefore, unable to drive one of the trucks as planned, another employee, Richard Zeller, was assigned to drive the rental truck, while Woodson drove the company truck. The two loaded trucks were to meet at the customer's home in the morning for unloading. Because Woodson did not want to remain at the job site while his employees spent most of the day unloading the trucks, he decided to bring his motorcycle along in the back of the company truck. He planned to ride the motorcycle back to Keepit-Safe's office while the trucks were being unloaded, and then ride back to the job site and reverse the procedure after the employees had finished their work.Following that plan, Woodson drove one of the trucks to the job site with some of the employees, had his motorcycle unloaded from the truck, and rode back to the office. Woodson left instructions for the workers to call the office shortly before the job was completed so that he could ride back, load his motorcycle back into the truck, and drive the truck and the employees back to Keepit-Safe. In the mid-afternoon, Woodson received the call and rode his motorcycle back to the job site. After arriving, Woodson found that the rental truck had been unloaded, and was ready to be returned to the rental company. Woodson directed Zeller to return it. Though the Keepit-Safe truck was still being unloaded, Christopher apparently was not needed and Woodson told him to return to the Keepit-Safe office. Seemingly on a whim, Woodson suggested that Christopher ride the motorcycle back to the office and Christopher agreed, although somewhat reluctantly. On the way back to Keepit-Safe, Christopher drove the motorcycle into the path of an oncoming truck and was killed. Christopher did not have a motorcycle endorsement for his driver's license. Keepit-Safe had a copy of Christopher's license in his personnel file. The motorcycle, Woodson's personal vehicle, had never been previously been used to transport employees, although some employees had been permitted to ride it on Keepit-Safe property. Keepit-Safe did maintain worker's compensation insurance, as required by Florida law, which was in full force and effect on the day of the accident.In her wrongful death action against Woodson, Ivey alleged that Woodson had a statutory duty pursuant to sections 322.03(4) and 322.12(5)(a), Florida Statutes (2002), to ensure that Christopher had a motorcycle endorsement prior to allowing him to operate his motorcycle, that Woodson was negligent in failing to do so, and that this failure resulted in, or contributed to, Christopher's death.2 Woodson moved for entry of final summary judgment, contending that he was immune from civil liability to Ivey and the Estate pursuant to the worker's compensation immunity provisions of section 400.11(1), Florida Statutes (2002). The trial court denied Woodson's motion for final summary judgment and the case proceeded to trial. At the close of Ivey's case, Woodson made several motions for directed verdict, all of which were denied by the trial court. The jury determined that: (1) Christopher's death arose out of and in the course and scope of his employment; (2) Woodson was not acting within the course and scope of his managerial or policy-making duties with Keepit-Safe when he allowed Christopher to use his motorcycle; (3) there was negligence on the part of Woodson that was a legal cause of Christopher's death; and (4) there was negligence on the part of Christopher that was a legal cause of his death.Section 440.11(1), Florida Statutes (2002), establishing worker's compensation immunity, provides, in pertinent part:(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, . . . and anyone otherwise entitled to recover damages from such employer at law . . . on account of such injury or death, . . .. . . .The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days' imprisonment as set forth in s. 775.082. (Emphasis added). The statute and case law make clear that worker's compensation immunity is extended to an employer's owners, supervisors and managers when the conduct causing the injury is within the scope of such person's managerial or policy-making duties. Goodman v. Hartigan, 862 So. 2d 890 (Fla. 5th DCA 2003). Conversely, corporate officers, supervisors and managers are not entitled to claim immunity when negligent acts causing injury to employees are committed outside the course and scope of their managerial or policy-making functions. Hawkins v. Cordy, 642 So. 2d 1115, 1116 (Fla. 3d DCA 1994).Under Florida's Worker's Compensation Act, an employer who secures worker's compensation coverage for his employees receives extensive immunity from suit by injured workers. Eller v. Shova, 630 So. 2d 537, 540-41 (Fla. 1993). Florida courts interpret the Act broadly to preserve immunity in the face of sometimes egregious acts by employers and managers, as long as those acts fall short of intentional torts, culpable negligence or serious criminal misconduct. See Byers v. Ritz, 890 So. 2d 343, 347 (Fla. 3d DCA 2004); see also Mekamy Oaks, Inc. v. Snyder, 659 So. 2d 1290, 1291 (Fla. 5th DCA 1995) (holding that employer retained worker's compensation immunity where supervisor removed safety switch from lawnmower, causing plaintiff to be thrown from mower and cut his foot); Emergency One, Inc. v. Keffer, 652 So. 2d 1233, 1235 (Fla. 1st DCA 1995) (finding that employer retained worker's compensation immunity where supervisor refused to obtain plastic brushes because of expense, and this refusal led to employees being severely burned).With the backdrop of expansive immunity for employers and managers as the public policy of Florida, we have no difficulty concluding that Woodson's decision to have Christopher return to Keepit-Safe on a motorcycle was a managerial decision, albeit, a very poor one. Ivey concedes that Woodson had the authority to direct Christopher to leave the job site and return to Keepit-Safe. Ivey further concedes that had Christopher been killed while returning to Keepit-Safe in a moving truck, Woodson would be entitled to worker's compensation immunity. The only real dispute between the parties is whether Woodson's decision to allow Christopher to return on the motorcycle was outside the scope of Woodson's managerial duties. We think not, particularly given the broad immunity afforded employers and managers under the worker's compensation act. The decision to send Christopher back to the office was clearly managerial -- the mode of transportation Woodson chose to accomplish that task was incidental to the business purpose served by Woodson's decision to send Christopher back to the office. In determining the immunity of managers and supervisors, the focus should be on the business purpose (or lack thereof) of the decision in question, not necessarily on the means utilized to accomplish that purpose.On a more fundamental level, it seems to us that Ivey's complaint, though artfully drafted, really sets forth a claim of negligent entrustment of a motor vehicle against Woodson. Although an owner of a motor vehicle is liable for any losses negligently caused by the bailee of a motor vehicle to third parties, an owner is not liable for injuries sustained by the bailee to whom he entrusted the motor vehicle because of the bailee's negligent operation of it. Raydel, Ltd. v. Medcalfe, 178 So. 2d 569 (Fla. 1965); see Toombs v. Alamano Rent-A-Car, Inc., 833 So. 2d 109 (Fla. 2002) (applying Raydel). Though as a matter of common sense, Woodson should have made certain that Christopher was capable of safely operating a motorcycle before entrusting it to him, to view these facts differently would allow the negligent bailee of a motor vehicle to seek damages against the bailor, something prohibited by Raydel.3For these reasons, we reverse this matter and remand with directions that final judgment be entered in favor of Woodson.REVERSED AND REMANDED. (SHARP, W. and PETERSON, JJ., concur.)__________________1It was explained at trial that the usual practice was for helpers like Christopher to be driven to the job site in the moving truck, help the driver with the moving job, and then return to the office with the driver.2Section 322.03(4), Florida Statutes (2002), provides that a person may not operate a motorcycle unless he or she holds a driver's license that authorizes such operation, subject to the appropriate restrictions and endorsements. Section 322.12(5)(a), Florida Statutes (2002), requires the Department of Highway Safety and Motor Vehicles to formulate a separate examination and licensure requirement for motorcycle operation.3We are also unpersuaded, though do not decide, that the statutes Ivey relies on in her complaint, sections 322.03(4) and 322.12(5)(a), create civil liability on the part of anyone other than the operator of the motorcycle. Section 322.03(4) requires the operator of a motorcycle to be properly licensed. Section 322.12(5)(a) requires the Department of Highway Safety and Motor Vehicles to formulate a separate examination and licensure requirement for motorcycle operation. Neither of these statutes place any duty on someone in Woodson's position. Though not cited by the parties, we note that section 322.36, Florida Statutes (2002), provides:No person shall authorize or knowingly permit a motor vehicle owned by him or her or under his or her dominion or control to be operated upon any highway or public street except by persons duly authorized to operate motor vehicles under the provisions of this chapter. Any person violating this provision is guilty of a misdemeanor of the second degree . . . .We express no opinion as to whether a violation of this statute creates a private cause of action.Torts -- Medical malpractice -- Hospitals -- Discovery -- Constitutional law -- Patient's Right to Know Amendment which provides that patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident -- Amendment preempts statutory privileges afforded health care providers regarding their self-policing procedures to the extent that such information is obtainable through a formal discovery request made by a patient or a patient's legal representative during the course of litigation -- Amendment is self-executing -- Amendment does not apply retroactively -- Questions certified: Does Amendment 7 preempt statutory privileges afforded health care providers' self-policing procedures to the extent that information obtained through those procedures is discoverable during the course of litigation by a patient against a health care provider? Is Amendment 7 self-executing? Should Amendment 7 be applied retroactively?FLORIDA HOSPITAL WATERMAN, INC., ETC., Petitioner, v. TERESA M. BUSTER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LARRY BUSTER, DECEASED, ET AL., Respondents. 5th District. Case No. 5D05-2195. Opinion filed March 10, 2006. Petition for Certiorari Review of Order from the Circuit Court for Lake County, William T. Swigert, Judge. Counsel: Mason H. Grower, III, Jack E. Holt and Ramon Vazquez of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Petitioner. Christopher V. Carlyle, Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of counsel, of The Carlyle Appellate Law Firm, The Villages, for Respondent Teresa M. Buster. Stephen H. Grimes and Jerome W. Hoffman of Holland & Knight LLP, Tallahassee, Amicus Curiae for Florida Hospital Association, Inc. Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach and Lincoln J. Connolly of Rossman, Baumberger, Reboso & Spier, P.A., Miami, Amicus Curiae for Floridians for Patient Protection, Inc.(SAWAYA, J.) Of the several constitutional amendments approved by the voters in 2004,1 we are called upon to consider the provisions of article X, section 25 of the Florida Constitution, commonly known as Amendment 7 or the “Patients' Right To Know Amendment.” Amendment 7 provides, in pertinent part, that “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Because Amendment 7 was placed on the ballot through the citizens' initiative process,2 its provisions did not emerge from the cauldron of the legislative process where, after debate and deliberation, the body politic bespeaks the will of the people. Through adoption of Amendment 7, the people have spoken directly for themselves.Amendment 7 has spawned a frenzy of litigation wherein litigants and trial courts have struggled to discern its purpose and the extent of its application. The litigation now before this court presents us with the following issues to resolve: 1) does Amendment 7 preempt statutory privileges afforded health care providers' self-policing procedures to the extent that information obtained through those procedures is discoverable during the course of litigation; 2) is Amendment 7 self-executing; and 3) should Amendment 7 be applied prospectively or retroactively. In essence, resolution of these issues involves a search for the intended meaning of the provisions of Amendment 7. That this is no easy task is a fact best illustrated by the disparate conclusions reached by the several circuit courts that have attempted to decide these issues.3 We undertake resolution of these issues by discussing the factual and procedural background and the appropriate standard of review, after which we analyze each issue in the order previously presented. We parenthetically note that the issue whether the information gathered in accordance with the provisions of Amendment 7 is admissible into evidence in trial proceedings is not an issue before us and will not be addressed.Factual and Procedural BackgroundA detailed discussion of the underlying facts of the litigation between the parties is not necessary to resolve the issues presented to us. Suffice it to say that Respondent, Teresa Buster, as personal representative of the estate of Larry Buster, brought a medical malpractice action against Florida Hospital Waterman, Inc. (the Hospital) and the other respondents, Jeffrey B. Keeler, M.D., and Keller & Goodman, M.D., P.A. As part of the discovery, Buster sought production of documents relating to the investigation of the decedent's death and any medical incidents of negligence, neglect, or default of any health care provider who rendered services to the decedent. The Hospital objected and filed a motion for a protective order, relying on various statutory privileges and arguing that Amendment 7 does not apply.Emanating from a hearing on the objection and motion was the trial court's order overruling the Hospital's objection and requiring the Hospital to produce the discovery that the Hospital claims was privileged. The court held that Amendment 7 is self-executing, should be retroactively applied, and any legislation to the contrary is subordinate to the constitutional amendment. Accordingly, the court ordered the production of documents and information pertaining to incidents dating back to December 25, 2000.4 Florida Hospital seeks certiorari review of that order, arguing that it constitutes a departure from the essential requirements of law, causing irreparable harm because it requires the production of privileged information and improperly gives self-executing, retroactive effect to Amendment 7.Standard of Review“While several standards of review are utilized to review petitions for writs of certiorari, when an appellate court reviews [a] non-appealable non-final order rendered by a trial court, the party seeking review must demonstrate that the trial court departed from the essential requirements of law and that the resulting harm is irreparable and cannot be remedied on appeal following final judgment.” Dep't of Children & Families v. L.D., 840 So. 2d 432, 435 (Fla. 5th DCA 2003) (citing Belair v. Drew, 770 So. 2d 1164 (Fla. 2000); Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998); Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987); S.H. v. Dep't of Children & Families, 769 So. 2d 452 (Fla. 5th DCA 2000)). Hence, this court has consistently held that certiorari is the appropriate vehicle to challenge non-final orders compelling the discovery of information claimed to be privileged. See Cape Canaveral Hosp., Inc. v. Leal, 917 So. 2d 336 (Fla. 5th DCA 2005); Beverly Enters.-Fla., Inc. v. Ives, 832 So. 2d 161 (Fla. 5th DCA 2002), review denied, 845 So. 2d 890 (Fla. 2003).Does Amendment 7 Preempt Statutory Privileges Afforded Health Care Providers' Self-policing Procedures to the Extent that Information Obtained in Accordance with Those Procedures is Discoverable During the Course of LitigationBecause resolution of this issue requires that we determine the meaning of Amendment 7, we proceed with our analysis de novo. Zingale v. Powell, 885 So. 2d 277 (Fla. 2004). Applying rules that parallel the principles that guide us in statutory interpretation, we must forego any construction that would defeat the intent of the framers of the amendment and the people who enacted it. Id. at 282 (“Such a provision must never be construed in such manner as to make it possible for the will of the people to be frustrated or denied.”); see also Coastal Fla. Police Benev. Ass'n, Inc. v. Williams, 838 So. 2d 543, 549 (Fla. 2003). Amendment 7 provides:§ 25. Patients' right to know about adverse medical incidents.(a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.(c) For purposes of this section, the following terms have the following meanings:(1) The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient's rights and responsibilities.(2) The term “patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.(4) The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available.Art. X, § 25, Fla. Const.We must read these provisions in pari materia and construe the amendment as a whole “in order to ascertain the general purpose and meaning of each part; each subsection, sentence, and clause must be read in light of the others to form a congruous whole.” Dep't of Envtl. Prot. v. Millender, 666 So. 2d 882, 886 (Fla. 1996); see also Bush v. Holmes, 31 Fla. L. Weekly S1 (Fla. Jan. 5, 2006); Physicians Healthcare Plans, Inc. v. Pfeifler, 846 So. 2d 1129, 1134 (Fla. 2003). Unlike statutory construction, “we have an obligation to provide ‘a broader and more liberal construction' of constitutional provisions.” Coastal Fla. Police Benev. Ass'n, Inc., 838 So. 2d at 549 (“ ‘Consequently, courts are far less circumscribed in construing language in the area of constitutional interpretation than in the realm of statutory construction. When adjudicating constitutional issues, the principles, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of a provision.' ”) (quoting Fla. Soc'y of Ophthalmology, 489 So. 2d at 1119).Subsection (a) provides that “patients” may obtain “any records” relating to an “adverse medical incident.” The term “patient” is defined in very broad terms to include any individual who has received or is currently receiving medical care or treatment. Art. X, § 25(c)(2), Fla. Const. The term “adverse medical incident” means “medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient . . . .” Art. X, § 25(c)(3), Fla. Const. The amendment's use of the terms “medical negligence” and “intentional misconduct,” and its references to acts that caused or could have caused death or injury and to patients who have previously received medical care, clearly reveals to us that such information may be obtained during the course of litigation by the patient through the discovery process. We also note that subsection (c)(4) provides that the information may be obtained by an informal request, such as a letter, or by a formal request, which certainly includes a formal discovery request made during the course of litigation. Moreover, subsection (c)(4) also allows the request to be made by the patients or their representatives, which would include lawyers. Reading the provisions of Amendment 7 in pari materia so it forms a congruous whole, and construing the provisions broadly and giving them a more liberal interpretation than we would a statute, we come to the conclusion that Amendment 7 preempts the statutory privileges afforded health care providers regarding their self-policing procedures to the extent that such information is obtainable through a formal discovery request made by a patient or a patient's legal representative during the course of litigation.We believe that this conclusion comports with common sense, which is certainly applicable when attempting to discern the intent of those who enacted Amendment 7. Millender, 666 So. 2d at 885-86; Plante, 372 So. 2d at 936 (citing In re Advisory Opinion to the Governor, 276 So. 2d 25 (Fla. 1973)). It would make little sense to allow a patient access to the information prior to the institution of legal proceedings against a health care provider, but not during the course of litigation. Certainly if a patient may obtain the information and then proceed with litigation, we can find no discernable reason why Amendment 7 would prohibit access to the information by a patient during the progress of the litigation. “[A]n interpretation of a constitutional provision which will lead to an absurd result will not be adopted when the provision is fairly subject to another construction which will accomplish the manifest intent and purpose of the people.” Plante, 372 So. 2d at 936 (citing City of Miami v. Romfh, 63 So. 440 (Fla. 1913)).It is also appropriate for us to examine the “ ‘explanatory materials available to the people as a predicate for their decision as persuasive of their intent.' ” Millender, 666 So. 2d at 886 (quoting Plante, 372 So. 2d at 936). In Advisory Opinion to the Attorney General Re Patients' Right To Know About Adverse Medical Incidents, 880 So. 2d 617 (Fla. 2004), the court quoted the summary for the proposed amendment as follows:Current Florida law restricts information available to patients related to investigations of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities' or providers' adverse medical incidents, including those which could cause injury or death. Provides that patients' identitie [sic] should not be disclosed.Id. at 619.5 This ballot summary states that the effect of the amendment is to give patients a right of access to information previously denied them under Florida law. This is an obvious reference to the statutory privileges that guarantee confidentiality of the self-policing processes of health care providers,6 which the courts have carefully protected from the discovery process during litigation.7 We believe that this ballot summary is a clear statement that Amendment 7 is intended to change Florida law by eliminating those privileges to the extent that such information is discoverable during the course of litigation between a patient and his or her health care provider. Moreover, the reference to medical malpractice in the summary indicates to those deciding whether to vote for Amendment 7 that the information would be made available for investigations of medical malpractice actions. We believe this means investigations conducted before and during the litigation process.Despite this rather clear statement of purpose, the Hospital continues to view this issue through the prism of privilege and confidentiality. The Hospital contends that preservation of the legislatively-established privileges that enhance self-policing by health care providers for the betterment of the patients they serve is a firmly-established policy that is of paramount importance and the people of Florida could not have meant to abrogate such a policy, especially one so carefully guarded by the courts. This is evident, continues the Hospital, because the text of Amendment 7 does not explicitly state that as its declared purpose. Interpreting the text of Amendment 7 differently and more broadly, we disagree. Further, what the Legislature gives through its enactments and the courts protect through their decisions, the people, through the constitutional amendment process, can certainly take away. See State ex rel. McIver v. Swank, 12 So. 2d 605, 609 (Fla. 1943) (“This is a case where the Legislature gave and the Legislature took away.”). We believe that is what the people of Florida intended when they inserted Amendment 7 into our constitution. Through this amendment, the people have clearly expressed their preference for freedom of information regarding adverse medical incidents over the privileges that protect the self-policing processes enacted by the Legislature and protected by the courts. The people have made their choice, and it is not for us to question the wisdom of it. We note, parenthetically, that Amendment 7 does not profess to affect the work-product and attorney-client privileges, and the parties do not contend otherwise.Effective June 20, 2005, the Legislature enacted section 381.028, Florida Statutes, to implement the provisions of Amendment 7. In doing so, the Legislature expressed an interpretation of Amendment 7 contrary to ours. It is the prerogative of the courts to interpret the Florida Constitution, including its amendments, by discerning the intent of the people who enact its provisions, and we have done so. Moreover, the provisions of Amendment 7, emanating from the citizens' initiative process, were not tested by a formalistic catechism of legislative debate where inquiry is made and answers provided regarding the purpose and meaning of the proposal sought to be enacted into law. Hence, the Legislature is in no position to claim superior interpretive knowledge of Amendment 7, as it sometimes does in instances where it enacts subsequent remedial legislation to correct what it perceives to be an erroneous interpretation of prior legislation by the courts. Equally important, when the people have spoken and expressed their will through the constitutional amendment process, the Legislature is not free to abrogate it through subsequent enactments. See Austin v. State ex rel. Christian, 310 So. 2d 289, 293 (Fla. 1975) (“A statute enacted by the Legislature may not constrict a right granted under the ultimate authority of the Constitution.”). While we express no opinion regarding the processes established in section 381.028 to secure the requested information pursuant to Amendment 7, we do reject the interpretation of that amendment by the Legislature.We find support for our conclusion in the Florida Supreme Court's advisory opinion regarding Amendment 7 rendered in Advisory Opinion to the Attorney General Re Patients' Right To Know About Adverse Medical Incidents, 880 So. 2d at 620-21, wherein the court stated, “Unquestionably, the amendment would affect sections 395.0193(8) and 766.101(5) of the Florida Statutes (2003), which currently exempt the records of investigations, proceedings, and records of the peer review panel from discovery in a civil or administrative action. Indeed, this is a primary purpose of the amendment.” While we consider this opinion for what it is -- an advisory opinion -- we also consider that the Florida Supreme Court views its advisory opinions as “ ‘frequently very persuasive and usually adhered to.' ” Barley v. S. Fla. Water Mgmt. Dist., 823 So. 2d 73, 82 (Fla. 2002) (quoting Lee v. Dowda, 19 So. 2d 570, 572 (Fla. 1944)). Specifically, “[r]egarding advisory opinions concerning initiative opinions, . . . ‘although our advisory opinions are not strictly binding precedent in the most technical sense, only under extraordinary circumstances will we revisit an issue decided in our earlier advisory opinions.' ” Id. at 82 (quoting Ray v. Mortham, 742 So. 2d 1276, 1285 (Fla. 1999)). Hence, we believe that the statement made by the Florida Supreme Court is persuasive.Retroactive or Prospective ApplicationThe Hospital convincingly argues that Amendment 7 should not be applied retroactively. “When considering whether a statute should be retroactively applied, the courts should determine 1) whether there is clear evidence that the Legislature intended to apply the statute retrospectively; and 2) whether retroactive application is constitutionally permissible.” Campus Commc'ns, Inc. v. Earnhardt, 821 So. 2d 388, 395 (Fla. 5th DCA 2002) (citing Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494 (Fla. 1999)), review denied, 848 So. 2d 1153 (Fla. 2003); Promontory Enters., Inc. v. S. Eng'g & Contracting, Inc., 864 So. 2d 479 (Fla. 5th DCA 2004). We believe that this test applies equally to constitutional amendments.The first inquiry necessarily requires that we look to the provisions of Amendment 7 to determine whether it provides for retroactive application. It does not. A law is presumed to operate prospectively absent a clear legislative expression requiring that the statute be retroactively applied. State v. Lavazzoli, 434 So. 2d 321, 323 (Fla. 1983) (“Nowhere in either article I, section 12 as amended or in the statement placed on the November ballot is there manifested any intent that the amendment be applied retroactively. Therefore, the amendment must be given prospective effect only.”) (footnote omitted); State, Dep't of Revenue v. Zuckerman-Vernon Corp., 354 So. 2d 353, 358 (Fla. 1977); Promontory, 864 So. 2d at 483; Earnhardt. Moreover, the amendment specifically provided that it was to become effective on the date it was approved by the electorate, which was November 2, 2004. We believe this is significant to our analysis because the inclusion of an effective date “effectively rebuts any argument that retroactive application of the law was intended.” State, Dep't of Revenue, 354 So. 2d at 358; see also In re Name Change Petition of Mullin, 892 So. 2d 1214, 1215 (Fla. 2d DCA 2005); Promontory; Earnhardt. Accordingly, we have found nothing that inhibits us from indulging the presumption that Amendment 7 should be applied prospectively.Although the second inquiry presumes that the answer to the first requires retroactive application, we will nevertheless, address it. Retroactive application would not be constitutionally permissible because it vitiates a vested right that health care providers have in the confidentiality of the information generated through the self-evaluative process. Because it is generally constitutionally impermissible to abrogate a vested right by retroactive application of a law, see Earnhardt, we believe that Amendment 7 should be prospectively applied. Buster argues that the amendment is remedial and procedural, thereby exempting it from the aforementioned rule. We disagree. As we have previously stated, Amendment 7 constitutes a change in the law based on an informed choice made by the electorate. Therefore, it is not remedial. As to the argument that the amendment is procedural rather than substantive, “substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994); see also Shaps v. Provident Life & Acc. Ins. Co., 826 So. 2d 250, 254 (Fla. 2002). Because Amendment 7 gives patients the right to information regarding adverse medical incidents and places a duty on the health care providers to provide it, it is a substantive amendment that should not be retroactively applied.Our analysis of the second inquiry, like the first, leads us to the same conclusion, which is that Amendment 7 should be applied prospectively. Prospective application of Amendment 7 means that information and documents created on or after the effective date of the amendment, which is November 2, 2004, are obtainable and discoverable during the course of litigation by a patient against a health care provider.Whether Amendment 7 is Self-ExecutingThe test for determining whether a constitutional provision is self-executing was established in Gray v. Bryant, 125 So. 2d 846 (Fla. 1960), wherein the court explained:The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment. If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing. The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing.Id. at 851 (citations omitted). The court further held that there is a presumption in favor of finding constitutional amendments to be self-executing. This presumption is premised on the notion that “in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.” Id.We believe that Amendment 7 sufficiently satisfies this test to leave undisturbed the presumption in favor of self-execution. The amendment contains sufficiently detailed definitions of the pertinent terms and adopts a fairly narrow policy of allowing access to information regarding adverse medical incidents to patients, including those who seek discovery during the course of litigation against their health care providers. We also believe that the reference to the procedures provided by general law in subsection (c)(4) (“The phrase ‘have access to any records' means, in addition to any other procedure for producing such records provided by general law . . . .”) is a clear expression of the people's intent that existing law was sufficient to implement the provisions of the amendment and that no further legislation was necessary. For example, current legislation should be sufficient to address the issue of fees and timeliness of compliance. See, e.g., § 395.3025, Fla. Stat. (2004); § 456.057(4), (16), Fla. Stat. (2004); § 766.204, Fla. Stat. (2004). Moreover, in the realm of litigation and the discovery process that is part of it, there are sufficient rules in place that will allow parties to obtain requested information under Amendment 7 in an orderly and lawful fashion. We see no need for further rules and regulations to govern the discovery procedures.We are also of the view that holding Amendment 7 is not self-executing would frustrate the intent of the people who enacted it. We note that in addition to the reference to the procedure for providing records already established by general law in subsection (c)(4), the people of Florida voted to make Amendment 7 effective upon approval, which left no time for implementing legislation to be enacted. It is apparent to us that these factors clearly indicate that the people intended Amendment 7 to be self-executing. This conclusion is further supported by the stated purpose of the amendment to abrogate the law that prohibited access to information regarding adverse medical incidents during the course of discovery. Given the people's intent to abrogate those laws previously enacted by the Legislature, we do not believe they intended for subsequent legislation to be enacted to help implement that intent and purpose. In essence, the people sought to eliminate certain legislative provisions rather than add more.ConclusionWe believe that Amendment 7 heralds a change in the public policy of this state to lift the shroud of privilege and confidentiality in order to foster disclosure of information that will allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their health care providers. We have come to this conclusion because we are obliged to interpret and apply Amendment 7 in accord with the intention of the people of this state who enacted it, and we have done so. It is not for us to judge the wisdom of the constitutional amendments enacted or the change in public policy pronounced through those amendments, even in instances where the change involves abrogation of long-standing legislation that establishes and promotes an equally or arguably more compelling public policy. See Sebring Airport Auth. v. McIntyre, 783 So. 2d 238, 244 (Fla. 2001).Hence, what the Legislature has given through its enactments and the courts have enforced through their decisions, the people can take away through the amendment process to our state constitution. Moreover, what the people provide in their constitution, the Legislature and the courts may not take away through subsequent legislation or decision. Therefore, we are not much impressed or persuaded by the legislative interpretation of Amendment 7 pronounced in section 381.028.We conclude that the trial court correctly held that Amendment 7 is self-executing and allows for the discovery, during the course of litigation by a patient against a health care provider, of information and documents that emanate from the self-policing processes of health care providers. In so ruling, the trial court did not depart from the essential requirements of the law and, therefore, as to these two issues, we deny the Hospital's petition for writ of certiorari. However, the trial court did depart from the essential requirements of law in ruling that Amendment 7 should be applied retroactively, thereby allowing discovery of information and documents emanating from the self-policing processes dating back to December 25, 2000. Because this ruling allows for the discovery of privileged information, we believe that this erroneous ruling causes irreparable harm that cannot be remedied on appeal following entry of final judgment at the conclusion of the case. Therefore, as to that issue, we grant the petition for writ of certiorari, quash that part of the trial court's order, and remand this case to the trial court for further proceedings.Certified QuestionsBecause our interpretation of Amendment 7 brings about a significant change in Florida law that will have impact statewide on litigation filed by patients against their health care providers, we hereby certify the following questions to the Florida Supreme Court as matters of great public importance:1) DOES AMENDMENT 7 PREEMPT STATUTORY PRIVILEGES AFFORDED HEALTH CARE PROVIDERS' SELF-POLICING PROCEDURES TO THE EXTENT THAT INFORMATION OBTAINED THROUGH THOSE PROCEDURES IS DISCOVERABLE DURING THE COURSE OF LITIGATION BY A PATIENT AGAINST A HEALTH CARE PROVIDER?2) IS AMENDMENT 7 SELF-EXECUTING?3) SHOULD AMENDMENT 7 BE APPLIED RETROACTIVELY?Petition For Writ Of Certiorari Denied in Part; Granted in Part; Order Quashed in Part; Remanded. (ORFINGER and TORPY, JJ., concur.)__________________1See, e.g., Art. I, § 26, Fla. Const. (entitled “Claimant's right to fair compensation”) (placing restrictions on the amount of attorneys' fees in medical malpractice actions).2There are several sources from which a constitutional amendment may originate. See Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000) (“Proposed amendments to the Florida Constitution may originate in any of several sources, including the Legislature, revision commission, citizen initiative, or constitutional convention.”) (footnotes omitted). Proposed Amendment 7 was placed on the ballot through the citizens' initiative process pursuant to the provisions of article XI, section 3 of the Florida Constitution.3See, e.g., Sardes v. S. Broward Hosp. Dist., No. 03-5290 (Fla. 17th Cir. Apr. 7, 2005) (2005 WL 831964); Brown v. Graham, No. 501999 (Fla. 15th Cir. Mar. 18, 2005) (2005 WL 900722); McHale v. Tenewitz, No. 052003 (Fla. 18th Cir. Feb. 28, 2005) (2005 WL 900744); Michota v. Bayfront Med. Ctr., Inc., No. 04-1057 (Fla. 6th Cir. Feb. 24, 2005) (2005 WL 900771); Rusiecki v. Jackson-Curtis, No. 03-008570 (Fla. 6th Cir. Jan. 31, 2005) (2005 WL 408133); Richardson v. Nath, No. 04-006970 (Fla. 6th Cir. Jan. 18, 2005) (2005 WL 408132); Bridgman v. Health Mgmt. Assocs., Inc., No. 51-04-CA-59-ES (Fla. 6th Cir. Jan. 14, 2005) (2005 WL 900630).4Specifically, the trial court ordered the Hospital toproduce the requested records, including those related to this incident, as follows: The discovery is limited to a four (4) year period to December 25, 2000. Only documents and information related to incidents involving gastrointestinal bleeding adverse incidents and involving adverse incidents occurring on Holidays shall be provided.5The stated purpose of Amendment 7 has similar provisions. It states in pertinent part:The Legislature has . . . restricted public access to information concerning a particular health care provider's or facility's investigations, incidents or history of acts, neglects, or defaults that have injured patients or had the potential to injure patients. This information may be important to a patient. The purpose of this amendment is to create a constitutional right for a patient or potential patient to know and have access to records of a health care facility's or provider's adverse medical incidents, including medical malpractice and other acts which have caused or have the potential to cause injury or death.Advisory Opinion to the Atty. Gen. Re Patients' Right To Know About Adverse Med. Incidents, 880 So. 2d 617, 618 (Fla. 2004).6The privileges referred to are the numerous laws that prohibit discovery of various components of a hospital's self-evaluation process, which the Legislature believes are essential to meaningful self-regulation by health care providers in general. See, e.g., § 766.101(5), Fla. Stat. (2005) (medical review committee privilege); § 766.1016(2), Fla. Stat. (2005) (patient safety data); § 459.016(3), Fla. Stat. (2005) (reports of disciplinary actions); § 400.118, Fla. Stat. (2005) (quality assurance nursing homes); § 395.0191(8), Fla. Stat. (2005) (staff membership and clinical privileges); § 395.197(4), (6)(c), (7), (13), Fla. Stat. (2005) (internal risk management); § 395.0193(8), Fla. Stat. (2005) (peer review). In addition, the Legislature has immunized the participants of such self-evaluation procedures from liability for actions taken. See, e.g., § 395.0191(7), Fla. Stat. (2005) (credentialing); § 395.0193(5), Fla. Stat. (2005) (peer review process); § 761.101(3), Fla. Stat. (2005) (medical review committee process).7See, e.g., Cruger v. Love, 599 So. 2d 111, 114 (Fla. 1992) (acknowledging previous holding that the discovery privilege for peer review committees is “ ‘designed to provide that degree of confidentiality necessary for the full, frank medical peer evaluation which the legislature [has] sought to encourage.' ”) (quoting Holly v. Auld, 450 So. 2d 217, 219-20 (Fla. 1984)); Tenet Healthsystem Hosps., Inc. v. Taitel, 855 So. 2d 1257, 1258 (Fla. 4th DCA 2003) (same); Beverly Enters.-Fla., Inc. v. Ives, 832 So. 2d 161 (Fla. 5th DCA 2002), review denied, 845 So. 2d 890 (Fla. 2003); Miami Heart Inst. v. Reis, 638 So. 2d 530, 532 (Fla. 3d DCA 1994) (“The constancy of the privilege [afforded medical review committees] is thus far absolute, [regardless of] the nature of the litigation or the procedural posture of the case . . . .”). The privileges have been enforced, even though Florida courts have recognized that to do so impinges on the rights of some civil litigants to discovery of information that might be useful, or even essential, to their causes. See Holly, 450 So. 2d at 220.Torts -- Nursing homes -- Violation of resident's rights -- Arbitration -- Trial court properly rejected resident's argument that arbitration and limitation of liability agreement signed by resident's daughter four days after resident's admission was unconscionable -- To succeed on unconscionability claim, plaintiff must establish both procedural and substantive unconscionability, and plaintiff failed to establish procedural unconscionability -- Totality of circumstances before trial court demonstrated that daughter, acting for resident, had meaningful opportunity to review agreement and to accept or reject its terms before she signed, and daughter did not obtain further guidance about or reconsider her decision during revocation period -- Daughter's limited education and apparent failure to consider the agreement carefully cannot, on record before appellate court, compel conclusion that daughter was forced to accede to a procedurally unconscionable arrangement -- Remedial limitations in nursing home arbitration agreement did not render arbitration agreement unenforceable -- Once trial court has determined the existence of valid written arbitration agreement and existence of arbitrable issue and has determined that right to arbitrate has not been waived, there is no reason why arbitrator cannot decide whether to enforce remedial limitations, and nothing in agreement at issue limited arbitrator's authority to enforce, or refuse to enforce, the remedial limitationsFRANCES L. BLAND, by and through her Daughter and Next Friend, Sharon Coker, Appellant, v. HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, d/b/a Heartland of Zephyrhills, Appellee. 2nd District. Case No. 2D05-3107. Opinion filed May 10, 2006. Appeal from nonfinal order of the Circuit Court for Pasco County; Wayne L. Cobb, Judge. Counsel: Valeria Hendricks and Thomas S. Harmon of Davis & Harmon, P.A., Tampa, for Appellant. John R. Blue, Sylvia H. Walbolt, Matthew J. Conigliaro, and Henry G. Gyden of Carlton Fields, P.A., Tampa, for Appellee.(LaROSE, Judge.) Frances Bland seeks review of a nonfinal order granting Health Care and Retirement Corporation of America's (HCR's) motion to dismiss and to compel arbitration. We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(iv). We affirm the trial court's order.Mrs. Bland was admitted to Heartland of Zephyrhills, an HCR nursing home, in October 2002. As is increasingly unfortunate in an area with an aging population, Sharon Coker, Mrs. Bland's daughter, admitted her to Heartland because she could no longer care for her mother in her home. Four days after Mrs. Bland's admission, Ms. Coker signed a number of documents, including an arbitration and limitation of liability agreement (the Agreement) on her mother's behalf.1 The Agreement was worded clearly, conspicuous and separate from other documents Ms. Coker signed. Subsequently, Ms. Coker sued HCR in circuit court, seeking damages and other relief on her mother's behalf for HCR's alleged violation of the Nursing Home Residents' Rights Act. §§ 400.022, .023, Fla. Stat. (2001). HCR moved to dismiss the lawsuit and to compel arbitration.The Agreement provides, in part, as follows:A. ARBITRATION PROVISIONS1.1 Any and all claims or controversies between the Facility and the Resident arising out of or in any way relating to the Resident's stay at the Facility, including disputes regarding interpretation of this Agreement, whether arising out of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories (including, without limitation, any claim based on Florida Statutes §§ 400.022, 400.023, 400.428, 400.429 . . .), shall be submitted to final and binding arbitration. Except as expressly set forth herein, the provisions of the Florida Arbitration Code, Florida Statu[t]es §§ 682.01, et. seq., shall govern the arbitration. Each party hereby waives its right to file a court action for any matter covered by this Agreement.* * * B. LIMITATION OF LIABILITY PROVISION: Read Carefully Before Signing. 1.1 The parties to this Agreement understand that the purpose of this “Limitation of Liability Provision” is to limit, in advance, each party's liability in relation to this Agreement.1.2 Liability for any claim brought by a party to this Agreement against the other party, . . . including, without limitation, claims for medical negligence or violation(s) of Florida Statutes §§ 400.022, et. seq., arising from simple or gross negligence, shall be limited as follows:1. Net economic damages shall be awardable, including, but not limited to, past and future medical expenses, off-set by any collateral source payments; any outstanding liens shall be satisfied from the damages awarded.2. Non-economic damages shall be limited to a maximum of $250,000.3. Interest on unpaid nursing home charges shall not be awarded.4. Punitive damages shall not be awarded.Other provisions of the Agreement limit discovery. HCR is obligated to pay all of the arbitrator's fees and costs. Under the Agreement, the parties also waived any right to recover attorneys' fees or costs. Any arbitration between the parties would occur in Pasco County before a single arbitrator who must be a retired judge or a ten-year member of The Florida Bar. The Agreement obligates the arbitrator to apply the Florida evidence and civil procedure rules. Moreover, the Agreement specifically provides that any arbitration award must be consistent with Florida law. The Agreement states that the arbitrator's award will be final and binding without any appeal except as provided by Florida law. See § 682.13(1)(a)-(e), Fla. Stat. (2001); Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1328-29 (Fla. 1989). Mrs. Bland had a three-day revocation period in which to cancel the Agreement. Neither she nor Ms. Coker exercised that right.The remedies available to Mrs. Bland, should she prevail in any arbitration against HCR, are fewer than those to which she would be entitled in a circuit court lawsuit under the Nursing Home Residents' Rights Act. For example, punitive damages are available as a possible remedy under the statute. §§ 400.0237(2), .0238. Attorneys' fees are available in limited circumstances. §§ 400.023(1), .0238(2). The statute does not cap noneconomic damages. § 400.023-.0238.In the trial court, Mrs. Bland argued that the Agreement was procedurally and substantively unconscionable. On appeal, she contends that the remedial limitations violate public policy. We hold that the trial court properly determined that the Agreement was not unconscionable. As for Mrs. Bland's public policy argument, we conclude that the arbitrator may address the validity and enforceability of the Agreement's remedial limitations.In assessing the enforceability of an arbitration agreement, we consider (1) whether there is a valid written agreement to arbitrate, (2) whether an arbitrable issue exists, and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). The validity of the arbitration agreement is the sole issue before us.The trial court properly rejected Mrs. Bland's argument that the Agreement was procedurally and substantively unconscionable. On this point, we review the trial court's factual findings under a competent, substantial evidence standard and its application of the law to the facts de novo. Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278, 284 (Fla. 1st DCA 2003).To succeed on an unconscionability claim, Mrs. Bland must demonstrate both procedural and substantive unconscionability. Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 264-65 (Fla. 2d DCA 2004); Belcher v. Kier, 558 So. 2d 1039, 1040 (Fla. 2d DCA 1990); see also Weston, 857 So. 2d at 284. Procedural unconscionability relates to the manner in which a contract is made and involves consideration of issues such as the bargaining power of the parties and their ability to know and understand the disputed contract terms. Petsch, 872 So. 2d at 265; Weston, 857 So. 2d at 284. Substantive unconscionability, on the other hand, requires an assessment of whether the contract terms are “so ‘outrageously unfair' as to ‘shock the judicial conscience.' ” Weston, 857 So. 2d at 285. A substantively unconscionable contract is one that “no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Kier, 558 So. 2d at 1044 (quoting Hume v. United States, 132 U.S. 406 (1889)).In her trial court affidavit, Ms. Coker stated that she signed the Agreement, together with several other documents, at Heartland four days after her mother's admission. The Agreement was a separate document and there is no suggestion that HCR hid its terms from Ms. Coker. See Powertel, Inc. v. Bexley, 743 So. 2d 570, 574 (Fla. 1st DCA 1999). Nonetheless, she claimed that no one explained what she was signing or what would happen if she refused to sign. Ms. Coker, who had a limited formal education, claimed that she did not know what arbitration meant.Karen Walsh, Heartland's admissions director, testified through deposition that she spent approximately two hours with Ms. Coker on the day Ms. Coker signed the Agreement and other documents. Ms. Coker had ample opportunity that day to review and ask questions about any of the documents. Ms. Coker was not rushed or forced to sign the Agreement. Furthermore, Mrs. Bland's continued stay at Heartland was not conditioned on Ms. Coker signing the Agreement. Ms. Walsh's customary practice was to advise residents or those acting on their behalf that they could choose whether or not to sign the Agreement. Refusal to sign would not have led to Mrs. Bland's expulsion from Heartland.Nothing in the record indicates that Ms. Coker questioned any provision of the Agreement while meeting with Ms. Walsh. Even during the three-day revocation period, it appears that Ms. Coker sought no advice concerning documents that she now claims she did not understand. See Weston, 857 So. 2d at 288. HCR prevented no such action by Ms. Coker.We cannot agree with Mrs. Bland's contention that procedural unconscionability is evident. The totality of the circumstances before the trial court demonstrates that Ms. Coker, acting for her mother, had a meaningful opportunity to review the Agreement and to accept or reject its terms before she signed it. Moreover, she did not obtain further guidance about or reconsider her decision during the revocation period. Ms. Coker's limited education and apparent failure to consider carefully the Agreement cannot, on the record before us, compel a conclusion that she was forced to accede to a procedurally unconscionable arrangement. See Weston, 857 So. 2d at 284.Mrs. Bland's reliance on Romano v. Manor Care, Inc., 861 So. 2d 59, 60-63 (Fla. 4th DCA 2003), review denied, 874 So. 2d 1192 (Fla. 2004), is unavailing. In Romano, the elderly husband of a nursing home resident signed an arbitration agreement shortly after his wife's admission and after being told that he had to sign it. The court concluded that the circumstances surrounding execution of the arbitration agreement demonstrated some quantum of procedural unconscionability. Id. at 62; see also Prieto v. Healthcare & Ret. Corp. of Am., 919 So. 2d 531 (Fla. 3d DCA 2005) (holding agreement unconscionable where father was enroute from hospital to nursing home, and daughter was told to execute documents before he arrived). Notably, Romano employed a “sliding scale” approach to testing the unconscionability of an arbitration agreement. Romano, 861 So. 2d at 62. Under this standard, a high degree of substantive unconscionability coupled with even scant evidence of procedural unconscionability renders an arbitration agreement unenforceable. Id. Romano concluded that the limitations on the remedies available to the nursing home resident abrogated statutory rights and, consequently, rendered the arbitration agreement a contract of “egregious substantive unconscionability.” Id. at 64.This court, however, eschews the “sliding scale” approach. Rather, we assess procedural unconscionability and substantive unconscionability independently. Petsch, 872 So. 2d at 265 (citing Eldridge v. Integrated Health Servs., Inc., 805 So. 2d 982 (Fla. 2d DCA 2001)). Having concluded that the trial court properly determined that the Agreement was not procedurally unconscionable, we need not address the issue of substantive unconscionability. Id.; Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019, 1027 (Fla. 4th DCA 2005) (finding no need to address substantive unconscionability where there is finding that procedural unconscionability is lacking).Although our precedent precludes us from assessing the remedial limitations under the substantive unconscionability rubric, we recognize Mrs. Bland's separate contention that those limitations violate public policy as expressed in the Nursing Home Residents' Rights Act. Public policy and unconscionability concerns, albeit based on similar facts, are distinct issues. Blankfeld v. Richmond Health Care, Inc., 902 So. 2d 296, 299 (Fla. 4th DCA), review denied, 917 So. 2d 195 (Fla. 2005). Mrs. Bland raised this argument in a trial court memorandum opposing HCR's motion to dismiss and to compel arbitration.2 She did not advance this argument at the motion hearing, however. Consequently, the trial court did not rule on the issue. See Miller v. Miller, 709 So. 2d 644, 645 (Fla. 2d DCA 1998) (holding court cannot address on appeal appellant's issue not ruled upon by trial court); Philip J. Padovano, Florida Appellate Practice § 8.1, at 144 (2006 ed.). Despite the absence of a specific ruling, we are, nonetheless, compelled to address an issue that is becoming a recurrent theme in cases brought before the district courts of appeal.We are mindful that some courts, on public policy grounds, have refused to enforce remedial limitations in nursing home arbitration or have refused totally to order arbitration where such restrictions are present. See Blankfeld, 902 So. 2d 296; Lacey v. Healthcare & Ret. Corp. of Am., 918 So. 2d. 333 (Fla. 4th DCA 2005). The remedial limitations in nursing home arbitration may be troubling to some. After all, the Nursing Home Residents' Rights Act is “[a] remedial statute . . . designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good.” Lacey, 918 So. 2d at 334. Unquestionably, the legislature enacted the statute to protect some of Florida's most vulnerable residents. § 400.011; Romano, 861 So. 2d at 63; Mang v. Country Comfort Inn, Inc., 559 So. 2d 672, 673 (Fla. 3d DCA 1990). Arguably, therefore, the Agreement's remedial limitations undermine the statute's salutary purposes. While superficially appealing, the argument is too facile.We also must recognize that Florida public policy favors arbitration. Petsch, 872 So. 2d at 263; Maguire v. King, 917 So. 2d 263 (Fla. 5th DCA 2005). Nothing in the Nursing Home Residents' Rights Act reflects a legislative hostility to arbitration. Moreover, as a general proposition, a party may waive statutory rights. Unicare Health Facilities, Inc. v. Mort, 553 So. 2d 159, 161 (Fla. 1989); see also Kaplan v. Kimball Hill Homes Fla., Inc., 915 So. 2d 755 (Fla. 2d DCA 2005). The Nursing Home Residents' Rights Act does not expressly prohibit a contractual waiver or limitation of statutory rights. Cf. Holt v. O'Brien Imports of Fort Myers, Inc., 862 So. 2d 87, 90 (Fla. 2d DCA 2003) (noting statute prohibited fee waiver). The legislature could have included such a restriction in the Nursing Home Residents' Rights Act. Petsch, 872 So. 2d at 261; see, e.g., § 769.06 (prohibiting contracts limiting liability in context of fellow servant act as illegal and void). Accordingly, a compelling argument can be made that, absent a legislative restriction, the courts should honor a party's decision to contract away statutory protections. See § 400.151(2) (stating that nursing home contract shall include “any other matters which the parties deem appropriate”).Despite these competing, and compelling, arguments, once the trial court completes its three-prong task under Seifert, 750 So. 2d at 636, we see no reason why the arbitrator, in the first instance, cannot decide whether to enforce the remedial limitations. Kaplan, 915 So. 2d at 761; Petsch, 872 So. 2d at 264; Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So. 2d 86 (Fla. 2d DCA) (noting that arbitrator should in first instance decide validity of remedial restrictions in arbitration provision), review denied, 908 So. 2d 1057 (Fla. 2005). Such a determination is well within the arbitrator's ken. Buckeye Check Cashing v. Cardegna, 126 S. Ct. 1204, 1210 (2006) (holding that regardless of whether challenge is brought in federal or state court, challenge to validity of contract as whole, and not specifically to arbitration clause, must go to arbitrator).The arbitrator can assess the public policy concerns in the context of a fully developed factual record. Conceivably, the evidence presented in arbitration could render these concerns moot. For example, a factual finding that noneconomic losses did not exceed $250,000 would render the contractual limitation irrelevant. Similarly, a finding that the evidence did not justify an award of punitive damages would eliminate the need to address the validity of a punitive damages bar.Nothing in the Agreement limits the arbitrator's authority to enforce, or refuse to enforce, the remedial limitations. Cf. Holt, 862 So. 2d at 89 (holding arbitration agreement unenforceable where it precluded arbitrator from awarding injunctive relief); Flyer Printing Co. v. Hill, 805 So. 2d 829, 833 (Fla. 2d DCA 2001) (upholding circuit court's refusal to enforce fee splitting provision of arbitration agreement because it contravened statute and defeated its remedial purpose). This case is unlike Blankfeld, 902 So. 2d at 299, where the governing rules of the arbitration body imposed burdens of proof that effectively precluded recovery for negligence. The Agreement contains no such restrictions. Indeed, the Agreement commands that “the arbitrator shall apply, and the arbitration award shall be consistent with Florida law. . . .” The parties, in effect, have empowered the arbitrator to address Mrs. Bland's public policy concerns. Terminix Int'l Co., LP v. Palmer Ranch Ltd. P'ship, 432 F.3d 1327 (11th Cir. 2005). The arbitrator may exercise that authority and determine whether the Agreement's remedial limitations are enforceable.Affirmed. (STRINGER and SILBERMAN, JJ., Concur.)__________________1The Agreement was intended to be signed by “Resident, Guardian or Other Legal Representative.” The nature of Ms. Coker's authority to execute the Agreement for her mother was not addressed in this appeal.2In her trial court memorandum, Mrs. Bland also suggested that allowing arbitration of nursing home claims under chapter 400 violated Florida public policy. To the extent the Agreement implicates interstate commerce, we note that such a result could trigger federal preemption concerns under the Federal Arbitration Act. See 9 U.S.C. § 1 et seq.; Buckeye Check Cashing, Inc. v. Cardegna, 126 S. Ct. 1204 (2006); Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967)ToAction against boat sales company brought by plaintiff who fell while aboard a boat which was supported by a boat cradle manufactured by a codefendant and assembled by company with wood and hardware that company purchased from retailer -- Trial court did not err in admitting evidence of company's spoliation of evidence and in giving jury instruction on adverse inference resulting from spoliation -- Where evidence showed that H-frames and component parts of boat cradles existed, were involved in the accident, and were last in possession of company, that plaintiffs notified company of the need to preserve the items within ten days of the accident, that none of the cradle material was preserved, and that lack of this crucial evidence hampered plaintiffs from proving their claims and codefendant from proving its defense, use of adverse inference instruction was justified -- With respect to company's suggestion that evidence of discovery misconduct was not proper for admission at trial and should be subject only to imposition of sanctions by the court, court's authority to impose sanctions for discovery violations does not prevent jury's consideration of evidence relevant to spoliation claimGOLDEN YACHTS, INC., ETC., Appellant, v. WILLIAM SCOTT HALL, SHERIDY HALL and WATER-LAND MANUFACTURING, INC., Appellees. 4th District. Case Nos. 4D04-1945 and 4D04-4269. February 15, 2006. Consolidated appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Timothy P. McCarthy, Judge; L.T. Case No. 01-9087-AD. Counsel: Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for appellant. Raymond M. Christian, P.A., Palm Beach Gardens, and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellees Hall. Steven P. Befera of Peterson Bernard, Fort Lauderdale, for appellees Water-Land Manufacturing, Inc.(May, J.) Golden Yachts, a boat sales company and a defendant, appeals a jury verdict in favor of the plaintiffs. It raises several issues. We affirm on all of them, but write to address Golden Yachts' argument that the trial court erred in admitting evidence to support an adverse inference instruction on the plaintiffs' spoliation claim.William Scott Hall fell while aboard a boat at Golden Yachts. The boat was supported by a boat cradle, which consisted of two “H-frames” manufactured by Water-Land Manufacturing, Inc., a co-defendant, and assembled with wood and hardware that Golden Yachts purchased from Home Depot. The plaintiff sustained severe injuries to his feet, spine, and one hand, resulting in permanent disability.After the accident, Golden Yachts placed the cradle's component parts next to a storage container. Several hours later, a videographer filmed the boat yard. Within the week, the manufacturer's sales representative inspected and photographed the damaged boat cradle. Approximately ten days after the accident, plaintiffs' counsel wrote to Golden Yachts requesting that all material from the cradle be preserved and offering to store the material if Golden Yachts was unwilling or unable to do so. Within a month of the accident, Golden Yachts hired an investigator. His investigation included photographing and measuring the debris from the boat cradle and interviewing employees and other witnesses to the accident.The plaintiff and his wife initially brought claims for negligence and loss of consortium against Golden Yachts. Subsequently, the complaint was amended to add the manufacturer as a defendant. Golden Yachts filed a cross-claim against the manufacturer for indemnity and contribution.A year after the suit was filed, two years after the accident, both the plaintiffs and the manufacturer requested inspection of the boat cradle debris. Golden Yachts' manager gathered up and set aside two H-frames that he believed to have been involved in the accident. None of the wood or hardware from the accident could be located. The experts who examined these H-frames determined, through comparison to the photos taken after the accident, they were not the ones involved in the accident. Golden Yachts could not explain what happened to the items and why they had not been securely stored. It could also not explain how it came into possession of a second pair of damaged H-frames.About the same time, the investigator hired by Golden Yachts purged his files. He testified that his common business practice was to turn all investigative material over to the hiring party and not retain records. Golden Yachts denied receiving the investigator's photographs, but was able to produce some photocopies of some of the photographs.1The plaintiffs again amended the complaint, this time to include a claim for spoliation of evidence against Golden Yachts. Prior to trial, however, this court rendered an opinion disallowing first-party spoliation claims. See Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003), approved, 908 So. 2d 342 (Fla. 2005).As a result, the manufacturer filed a Motion for Sanctions and for Negative Inferences against Golden Yachts. The trial court denied the motion for sanctions but granted the request for an adverse inference jury instruction. Golden Yachts in turn filed a motion to exclude any evidence relating to its loss of the boat cradle evidence and its production of the unrelated damaged H-frames. Golden Yachts suggested the court use a stipulation of facts in lieu of admitting evidence; however, the parties did not agree to a stipulation. The court did not rule on the motion in limine, but at trial it overruled similar objections by Golden Yachts to the introduction of evidence.The jury found Golden Yachts one hundred percent liable. The trial court denied Golden Yachts' motions for new trial and for remittitur. From the final judgment entered in conformance with the jury verdict, Golden Yachts now appeals.“A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Dessaure v. State, 891 So. 2d 455, 466 (Fla. 2004) (citing Blanco v. State, 452 So. 2d 520, 523 (Fla. 1984)). The same standard applies to rulings on motions in limine. State v. Polak, 598 So. 2d 150, 152 (Fla. 1st DCA 1992).Golden Yachts argues the trial court has a choice in handling spoliation claims. It can either admit evidence of spoliation or it can give an adverse inference instruction, but it cannot do both. It argues the trial court committed reversible error by admitting evidence that Golden Yachts lost the component parts and provided the wrong H-frames for inspection and testing and by giving the adverse inference instruction to the jury.The plaintiffs and the manufacturer both respond that it is necessary to admit evidence to support the adverse inference instruction. They argue that without introducing evidence, the jury would be unable to determine the basis for the instruction and how to apply it.We find no error in the trial court's rulings on this issue. The adverse inference instruction does not relieve a party from its burden of proof at trial. Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer, 802 So. 2d 346, 351 (Fla. 4th DCA 2001). Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence[.]” Black's Law Dictionary 1437 (8th ed. 2004). In cases involving negligent spoliation, courts prefer to utilize adverse evidentiary inferences and adverse presumptions during trial to address the lack of evidence. In cases involving intentional spoliation, courts more often strike pleadings or enter default judgments. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346-7 (Fla. 2005).The spectrum of remedies includes allowing the party who has been aggrieved by the spoliation to present evidence about the preaccident condition of the lost evidence and the circumstances surrounding the spoliation, as well as instructing the jury on the inferences that may be drawn from the spoliation. These remedies may be cumulative, as determined by the judge from the circumstances of each case, in the exercise of broad discretion.Gath v. M/A-COM, Inc., 802 N.E.2d 521, 527 (Mass. 2003) (citations omitted).Nothing in Florida's Evidence Code prevents “the drawing of an inference that is appropriate.” § 90.301(3), Fla. Stat. (2004). An inference, unlike a presumption, is “[a] logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exists from the established facts.” Black's Law Dictionary 778 (6th ed. 1990); see Charles W. Ehrhardt, Florida Evidence § 301.1 (2002 ed.).Prior to a court exercising any leveling mechanism due to spoliation of evidence, the court must answer three threshold questions: 1) whether the evidence existed at one time, 2) whether the spoliator had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense. Jordan ex rel. Shealey v. Masters, 821 So. 2d 342, 347 (Fla. 4th DCA 2002). See, e.g., Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1090 (Fla. 4th DCA 2001); Fed. Ins. Co. v. Allister Mfg. Co., 622 So. 2d 1348, 1351 (Fla. 4th DCA 1993). Unlike an adverse presumption instruction, where the court must find the spoliator was duty-bound to preserve the evidence, “an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” Martino, 835 So. 2d at 1257.The evidence here shows that the H-frames and the component parts of the cradles existed, were involved in the accident, and were last in the possession of Golden Yachts. The plaintiffs notified Golden Yachts of the need to preserve the items within ten days of the accident. Yet, none of the cradle material was preserved. The lack of this crucial evidence hampered the plaintiffs in proving their claims and the co-defendant from proving its defense. The trial court was able to answer the three threshold questions in the affirmative, thereby justifying the use of the adverse inference instruction. See Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So. 2d 547, 551 (Fla. 4th DCA 2005).Golden Yachts also suggests that evidence of discovery misconduct is improper for admission at trial, and should be subject only to the imposition of sanctions by the court. While courts have the authority to impose sanctions for discovery violations, it does not prevent the jury's consideration of evidence relevant to the spoliation claim.Affirmed. (Polen, J., and Rothschild, Ronald J., Associate Judge, concur.)__________________1Golden Yachts also failed to fully and accurately answer interrogatories propounded by the plaintiff. It failed to identify the employee responsible for deciding what materials were required to construct the boat cradles and who had purchased them. It further failed to disclose an eyewitness to the accident who provided first aid to the plaintiff.Torts -- Insurance -- Where insured was sued for the wrongful death of an employee in an action which alleged that the employee's death was the result of insured's intentional acts or conduct that was substantially certain to result in injury or death, and insured filed third-party action against insurance agent which provided workers' compensation and employers liability policy to insured, alleging that agent breached its duty to obtain proper insurance for insured in that it obtained a policy which contained an exclusion for bodily injury intentionally caused by insured, and that agent misrepresented that it had obtained coverage for all liability with no exceptions, trial court properly entered summary judgment for the insurance agent on the third-party complaint -- Because public policy prohibits an insured from being indemnified from a loss resulting from its intentional acts, insured has no claim against agent for failure to procure coverage for intentional acts -- In order to prove its misrepresentation case, insured was required to establish that agent made a deliberate and knowing misrepresentation designed to cause, and actually caused detrimental reliance by insured -- Since insured would not have been able to obtain coverage for its intentional acts, there could be no detrimental reliance -- If allegations of wrongful death complaint against insured could be read to allege liability of insured under theory that insured's conduct was substantially certain to result in injury or death, coverage would have been provided under policy procured by agent, and there can be no claim against agent for failure to procure such coverage or any claim for misrepresentationGRIFFIN BROTHERS CO., INC., a Florida corporation, Appellant, v. DORIS MOHAMMED, individually and as personal representative of the ESTATE OF ABRAHAM KHAN, JR., VILLARI & ASSOCIATES, INC., TRANSPORTATION CASUALTY INSURANCE COMPANY, AMERITRAIL, LTD., by its general partner AMERITRAIL, INC., a Florida corporation, Appellees. 4th District. Case No. 4D04-2802. January 25, 2006. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Victor Tobin, Judge; L.T. Case Nos. 94-8111 (02) and 95-11803 (02). Counsel: Kenneth D. Cooper, Fort Lauderdale, for appellant. Doreen E. Lasch of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellee-Villari & Associates, Inc.(Crow, David F., Associate Judge.) Appellant, Griffin Brothers Company, Inc. (“Griffin”), timely appealed the granting of a final summary judgment on its Third Party Complaint in favor of Appellee, Villari and Associates, Inc. (“Villari”). For the reasons explained herein, we affirm the final summary judgment.On July 20, 1992, Abraham Khan, Jr., an employee of Griffin, was killed when his vehicle overturned into a lake while he was performing within the scope and course of his employment with Griffin. In 1994, Doris Mohammed, individually and as Personal Representative of the Estate of her deceased son, Abraham Khan, filed a wrongful death action against Griffin. To avoid the exclusive remedy provisions of Florida Statutes Chapter 440 et seq., she alleged in part:15. That it was usual policy . . . for defendant . . . to hire single males with no dependents, . . . to work in hazardous activities, and order them to operate defective heavy duty vehicles . . . without the requisite licensing, or training . . . .. . . . 19. . . . Griffin . . . intentionally, willfully, wantonly, recklessly and with callous disregard for the health and safety of the victim ordered Mr. Khan to drive a dangerous instrumentality, a heavy duty (20 ton) dump trunk upon unsafe terrain . . . . Griffin, knew that the victim did not have the required license, issued by the State of Florida to operate said vehicle . . .20. That defendant Griffin intentionally and willfully failed to comply with standard and required safety regulation . . . .21. Defendant Griffin intentionally, willfully, wantonly and specifically directed its agents to place badly worn and/or bald tires on this and other off-road vehicles used at the job site . . . .22. [D]efendant Griffin knew and encouraged improper maintenance of said vehicle driven by the victim as a cost saving measure for its business.23. That defendant Griffin had knowledge of previous serious and fatal incidents involving its employees and unsafe vehicles and intentionally refused to comply with federal safety regulations despite prior citation to repair said vehicles, and correct its conduct, and further intentionally failed to warn, instruct or advise the victim that he was being ordered to engage in conduct which was substantially certain to result in injury or death.24. That defendant Griffin intentionally . . . directed the victim without warning, to perform a task and engage in conduct that was substantially certain to result in serious injury or death . . . .. . . . 26. Griffin intentionally failed to provide adequate safety measures . . . .27. That as a direct and proximate result of the intentional willful, wanton and reckless conduct of the defendant Griffin Brothers' Co., Inc., said conduct that was substantially certain to result in injury or death, the plaintiff was deprived of her son, who suffered bodily injury, pain and suffering, loss of earnings and loss of the balance of his youthful life.Prior to the incident, Transportation Casualty Insurance Company (“TCI”) had issued a Workers' Compensation and Employers Liability Insurance Policy to Griffin Brothers. TCI defended Griffin in the wrongful death action under a reservation of rights, and filed a declaratory action against Griffin asserting that its policy did not provide coverage pursuant to an exclusion contained in Part II, Section C of the policy which provided in part:PART TWO-EMPLOYERS LIABILITY INSURANCE. . . . C. ExclusionsThis insurance does not cover:. . . .Bodily injury intentionally caused or aggravated by you;Thereafter, Griffin filed an Amended Third Party Complaint against Villari, the licensed insurance agent who provided the TCI policy. In Count I, Griffin alleged that Villari breached its duty to obtain proper insurance for Griffin in that it obtained a policy which contained exclusions that exposed Griffin to liability. In Count II, Griffin alleged that it requested Villari to obtain an employer liability policy which would cover Griffin for “all liability” and “provide full liability coverage” with “no exceptions” and that Villari misrepresented such coverage had been obtained.Ultimately, the wrongful death claim was settled with Griffin and TCI each paying one half of the settlement. The declaratory action under the TCI policy was dismissed with prejudice without any determination as to whether the wrongful death claim was covered. Thus, the only remaining claim was the third party claim by Griffin against Villari. Villari filed its Motion for Summary Judgment on the third party claim, which Motion was granted by the trial court. After rehearing was denied, the trial court entered Final Judgment in favor of Villari on June 29, 2004.Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether there are any remaining issues of fact, however, all inferences are viewed in favor of the non-moving party and the moving party must conclusively show that there is no genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). If the record raises the slightest doubt that an issue of material fact might exist, summary judgment is improper. Yzaguirre v. Progressive Am. Ins. Co., 793 So. 2d 99 (Fla. 2d DCA 2001).The record reflects that Richard A. Griffin, Sr., president of Griffin for 46 years, had been in charge of insurance procurement and the insurance renewal process for approximately 20 years. Mr. Griffin's standard procedure was to advertise the company's insurance needs to various companies and then work with brokers or agents to purchase the coverages. Once coverage was obtained, the policies would be delivered to him and he would personally review each policy. Griffin thereafter retained physical possession of the policies.Randall Warren was employed by Villari as the agent for the TCI policy. Mr. Griffin testified that he was repeatedly told by Mr. Warren that the company was 100% covered for liability and workers' compensation and was told, “I have you covered on every single thing in liability and workmen's comp.” Mr. Griffin testified, “I challenge my agent to sell me what I needed to give me 100 percent coverage and protection.” Nevertheless, Mr. Griffin admitted he never asked and was never told that the policy would cover Griffin for “intentional acts.” He also acknowledged that insurance companies are required to sell policies that conform to state law. Although he testified that he was knowledgeable about insurance matters and was familiar with exclusions in insurance policies, he admitted he did not know if an insurance company would issue a policy in this state that covered “intentional acts.” Likewise, he was unaware if there were any material differences between the TCI policy and any subsequent employers liability policies purchased by his company. He also could not state whether Griffin's current policy contained an intentional acts exclusion.Warren stated that Mr. Griffin did not ask him to procure a policy that would cover Griffin for its intentional acts, nor was he asked at any time prior to the incident whether such coverage was provided to Griffin. In fact, as a licensed insurance agent in Florida with approximately 15 years of experience, he had never seen such a policy and knew of no insurance company that would provide such coverage.The Workers' Compensation Employers Liability Insurance Policy issued by TCI is a dual coverage policy. Part I, Workers Compensation, provided coverage to Griffin for liability under the Workers' Compensation Act (Florida Statute Chapter 440 et seq.) as a result of injuries to employees during their employment. Part II, Employer's Liability Insurance, however, provided coverage to Griffin for injuries to employees during their employment under circumstances where Griffin would be obligated to pay damages other than the statutorily mandated workers' compensation benefits. Obviously, the circumstances under which an employer may be liable to pay damages other than workers' compensation benefits are severely limited because of the exclusive remedy provisions of Chapter 440. In essence, the Employer's Liability Insurance provides “gap” insurance to the employer in situations where the employee may maintain a tort action against the employer despite the exclusive remedy provisions of the Workers' Compensation Act. See, e.g., Travelers Indem. Co. v. PCR, Inc., 889 So. 2d 779, 784 n. 7 (Fla. 2004); see also Ottumwa Hous. Auth. v. State Farm Fire & Cas. Co., 495 N.W.2d 723, 728-29 (Iowa 1993) (quoting 7B John Alan Appleman, Appleman, Insurance Law & Practice Section, § 4571 at 2 (Walter F. Berdal Ed., 1979)); Producers Dairy Delivery Co. v. Sentry Ins. Co., 41 Cal. 3d 903, 226 Cal. Rptr. 558, 718 P.2d 920, 927 (1986).As noted above, in order to avoid the exclusive remedy provisions of the Workers' Compensation Act, the wrongful death complaint made various allegations in an attempt to fall under the “intentional tort exemption” to the workers' compensation statutory scheme. See Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000); Eller v. Shova, 630 So. 2d 537, 539 (Fla. 1993). Florida has recognized the existence of two alternative bases to establish this “intentional tort exception” to the exclusive remedy provisions of the Workers' Compensation Act. The employer must be shown to either have (1) exhibited a deliberate intent to injure or (2) engaged in conduct which is substantially certain to result in injury. Turner, 754 So. 2d at 687.1 In the present case, since the declaratory action was never decided, it is unclear whether the Plaintiff's allegations would fall under the first or second part of the above disjunctive test. However, as noted below, regardless of the theory under which Griffin was sued, the trial court was correct in granting summary judgment.The first test annunciated in Turner focuses on whether the employer deliberately intended to injure the employee. If that is the basis of the original claim against Griffin, then the action is one predicated upon a true “intentional act,” as that term is generally defined in tort law. In general, persons may not insure themselves against their own intentional misconduct because the availability of insurance will directly stimulate an intentional wrongdoer to violate the law. See, e.g, Mason v. Fla. Sheriff's Self-Insurance Fund, 699 So. 2d 268 (Fla. 5th DCA 1997) (holding that public policy precluded coverage for a deputy's demand for sexual intercourse in return for not serving an arrest warrant). Thus, Florida courts have long held that the public policy of this state prohibits an insured from being indemnified from a loss resulting from its own true intentional acts. Ranger Ins. Co. v. Bal Harbor, Inc., 549 So. 2d 1005 (Fla. 1999); see also Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So. 2d 636 (Fla. 3d DCA 1994).Therefore, should the conduct alleged in the suit against Griffin be read to encapsulate the type of conduct for which public policy prohibits coverage, the Plaintiff would have no claim against the agent. Since such coverage would be against public policy, this court will not recognize a claim against the agent for failure to procure that coverage. Moreover, in order to prove its misrepresentation case, Griffin was required to establish that Villari made a deliberate and knowing misrepresentation designed to cause, and actually caused the detrimental reliance by the Plaintiff. Rappaport v. Jimmy Bryan Toyota of Ft. Lauderdale, 522 So. 2d 1005, 1006 (Fla. 4th DCA 1988). Since Griffin would not have been able to obtain coverage for its “true intentional acts,” there is no detrimental reliance. See State Farm Mut. Auto. Ins. Co. v. Novotny, 657 So. 2d 1210, 1213 (Fla. 5th DCA 1995).In addition, in the absence of coercion, duress, fraud in the inducement or some other independent ground justifying recission, Griffin was bound by the terms of the contract between the parties. See Merrill, Lynch, Pierce, Finner, & Smith, Inc. v. Benton, 467 So. 2d 311 (Fla. 5th DCA 1985). Florida law imposes a duty upon an insured to learn and know the contents of his insurance policy upon its delivery. Reliance Ins. Co. v. D'Amico, 528 So. 2d 533 (Fla. 2d DCA 1988). In the instant case, the liability policy issued to Griffin Brothers clearly provided an exclusion for “bodily injury intentionally caused or aggravated by [Griffin Brothers.]” There is no allegation that Griffin Brothers was prevented from reading the policy and, therefore, is charged with knowledge of the provisions contained therein. Id. at 538.The second of the two alternative bases as recognized by the supreme court in Turner to avoid the exclusive remedy provisions of the Workers' Compensation Act only requires that the conduct of the employer be “substantially certain to result in injury or death.” Turner, 654 So. 2d at 688. In Turner, the supreme court held that this “intentional tort” exception “includes an objective standard to measure whether the employer engaged in conduct which was substantially certain to result in injury.” Id. at 691. In Travelers Indemnity Co., 889 So. 2d 779, the Florida Supreme Court was presented with the specific question whether an intentional tort exclusion in an employer's liability policy identical to the one at bar would preclude coverage for suits against the employer under this “objective-substantially-certain” theory of intentional tort. In holding that the public policy of this state does not prohibit an employer from insuring against such a risk, the court held the specific coverage exclusion involved in the present litigation did not bar coverage. Id. at 795-96. Therefore, if the allegations of the Complaint against Griffin can be read to fall under this theory of liability, coverage would have been provided under the policy issued by TCI. Since coverage would have been provided under the policy, there can be no claim for failure to procure such coverage nor any claim for misrepresentation.In summary, regardless of the theory of liability alleged in the suit against Griffin, there could be no claim against the agent. If the allegations constitute a “true intentional tort,” public policy would prohibit coverage and, therefore, no claim could be asserted against the agent. Likewise, if the allegations against Griffin in the wrongful death claim are read as being based upon an objective-substantially-certain theory of liability, coverage would have been provided under the policy and, therefore, there could be no claim against the agent for failure to procure such coverage or for misrepresentation.For the foregoing reasons, we affirm the trial court's final summary judgment in this matter.Affirmed. (Stevenson, C.J. and Polen, J., concur.)__________________1The intentional tort exception to the workers' compensation exclusive remedy provisions was codified by the Florida Legislature in 2003. Fla. Stat. § 440.11(1) (2003). In doing so, however, the Florida Legislature modified the standard announced in Turner. See Feraci v. Grundy Marine Constr. Co., 315 F. Supp. 2d 1197 (N.D. Fla. 2004). The Turner standard would be applicable to the instant case since the subject TCI policy was issued in 1991 and the death occurred in 1992.
TORTS-Police pranksters not entitled to immunityThe city of Albuquerque, N.M., was not entitled to qualified immunity from a lawsuit prompted by an airline worker suffering trauma following a hoax arrest at the hands of real police officers, the 10th U.S. Circuit Court of Appeals held on Feb. 28. Fuerschbach v. Southwest Airlines Co., No. 04-2117.Celebrating a new hire's conclusion of her probationary period with a prank, several Southwest Airlines supervisors at Albuquerque's Sunport Airport convinced two police officers to stage an arrest of Marcie Fuerschbach, a Southwest employee. After being handcuffed and believing she was arrested, Fuerschbach allegedly suffered serious psychological injuries. She filed suit under 42 U.S.C. 1983 and raised Fourth Amendment and state tort claims the city, her supervisors and Southwest. A New Mexico federal court found that qualified immunity shielded the police from the constitutional claims and granted summary judgment to all defendants on all claims.The 10th Circuit affirmed in part, but reversed on the summary judgment and other tort claims. The defendants were not entitled to qualified immunity because the seizure did not implement an official policy of the city. Whether the characterization of the incident as a prank permits the officers to escape liability is a question for a jury to decide. The Fourth Amendment claim also survived because an otherwise unreasonable seizure doesn't become reasonable when the officers intend it as a prank. 'Law of the place' is law of state where tort aroseUnder the federal Tort Claims Act (FTCA), "the law of the place" means the law of the state where the tortious act or omission occurs, even if it is within the territorial boundaries of a tribal reservation, the 8th U.S. Circuit Court of Appeals ruled on March 2. LaFramboise v. Leavitt, No. 04-3245.Alleging that her son had been the victim of medical malpractice at the Quentin N. Burdick Memorial Comprehensive Health Care Facility, Sandy LaFramboise, individually and on behalf of her son, sued the United States under the FTCA. The facility is an Indian Health Service facility located on the Turtle Mountain Indian Reservation in Belcourt, N.D. The FTCA gives federal district courts jurisdiction over injuries caused by the negligent or wrongful act of any U.S. government employee while acting within the scope of his employment in accordance with the law of the place where the act occurred. A North Dakota federal court dismissed the action for failure to file an expert affidavit within three months of filing suit, a requirement under North Dakota law in medical malpractice cases. Tribal law does not have such a requirement.The 8th Circuit affirmed, holding that state law applies when a negligent act occurs on land that is within the territorial boundaries of a state but may also be governed by a different political entity. The court said that allowing the laws of 550 different tribal entities to govern liability of the United States would subject it to uncertainty and potentially expanded liability.
WRONGFUL DEATH -Housing authority pays $5.75M to settle fire suitChicago (AP)-The family of a woman and her baby who died in an apartment fire about five years ago have won a $5.75 million settlement from the Chicago Housing Authority and the private agency that managed the building.Shlonzo Burnett and her 1-year-old son were pulled from the 2001 blaze that started in their South Side apartment at the Harold Ickes Homes but later died from carbon monoxide poisoning. The fire started when two of Burnett's children started playing with matches, and investigators later found that their fifth-floor apartment did not have a smoke detector.An inspector who worked for a Chicago Housing Authority contractor admitted to lying on a report filled out before the fire that said the apartment had a smoke detector. The authority said that its policy states that each unit must be equipped with a working smoke detector. INTENTIONAL TORTS -Ex-manager must pay Leonard Cohen $9.5MLos Angeles (AP)-A California state court has ordered singer-songwriter Leonard Cohen's former business manager to pay $9.5 million after she had failed to respond to allegations of stealing from his retirement savings. Seventy-one-year-old Cohen claimed that Kelley Lynch siphoned $5 million from his personal accounts and investments. NEGLIGENCE -$3.6M for woman hurt in roller coaster accidentRavenna, Ohio (AP)-An Ohio state jury found Six Flags Inc. negligent, and awarded $3.6 million to a Wisconsin woman who was hurt while riding a roller coaster at a northeast Ohio amusement park.Terry Wang suffered a fractured skull and broken nose in July 2000 when she was hit by something while riding the Villain roller coaster at the former Six Flags Worlds of Adventure in Aurora, Ohio. Doctors removed a piece of her skull to relieve pressure on the brain and removed bits of bone from the brain. Testimony at the trial revealed that employees had warned park officials in May and June 2000 that people were throwing rocks at riders. Rocks were on the ground below the Villain near a walkway. The jury award includes $1.1 million for medical and other expenses and $2.5 million in punitive damages. Torts -- Negligence -- Civil procedure -- Attorney's fees and costs -- Where damages awarded to plaintiff were less than set-off for prior settlements, and amended final judgment provided that plaintiff would take nothing from defendant, defendant was entitled to costs as prevailing party pursuant to section 57.041(1) -- Offer of judgment -- Where joint offer is made by defendants in a case, failure to specify amount to be contributed by each may be harmless if theory for defendants' joint liability does not allow for apportionment under section 768.81 -- Plaintiff's ability to evaluate joint offer made by two defendants was not impaired by lack of apportionment where it was undisputed that one defendant was only vicariously liable for negligence of second defendant -- Joint offer of judgment was enforceable, and trial court erred by denying motion for attorney's fees
DANNER CONSTRUCTION COMPANY, INC., Appellant, v. REYNOLDS METALS COMPANY, Appellee. 2nd District. Case No. 2D99-381. Opinion filed April 12, 2000
Torts -- Medical malpractice -- Stay of proceedings -- Where, in connection with New York court's order of rehabilitation of defendant's medical malpractice insurer, New York court has ordered temporary stay of proceedings in which insurer is obligated to defend a party, Florida trial court, as matter of comity, should have entered stay of medical malpractice action in deference to New York order of rehabilitation
EMILIO MANTERO-ATIENZA, M.D., Petitioner, v. RAFAEL J. SALVADOR, as Personal Representative of the Estate of Rafael Salvador and on behalf of Esperanza Salvador, as guardian, Respondents. 3rd District. Case No. 3D01-3469. L.T. Case No. 98-19334. Opinion filed February 13, 2002. A Writ of Certiorari to the Circuit Court for Dade County, Philip Bloom, Judge. Counsel: O'Connor, Chimpoulis, Restani, Marrero &McAllister, and David R. Cassetty, for petitioner. Griver, Weinstein & Trop, and Mark S. Weinstein, for respondents.
Wrongful death -- Medical malpractice -- Estates -- Attorney's fees -- Argument -- Unobjected-to argument which implied that defendant was the only doctor, out of nine possible defendants, that plaintiff sued was not fundamental error where it was not shown that argument was harmful, that curative instruction would not have been sufficient, or that argument so damaged fairness of trial that public's interest in system of justice requires a new trial -- Claim against estate by prevailing defendant in wrongful death action for attorney's fees under offer of judgment statute is not subject to probate code's statute of nonclaim -- Because defendant's claim for attorney's fees arose after decedent's death, claim is not subject to two-year limitation -- Proposal for settlement served on personal representative which offered a lump-sum, non-specific settlement of $25,000 to settle ``all of the claims set forth in this cause against these defendants,'' was valid -- Defendant in a wrongful death action need not apportion a proposed settlement among the estate and survivors to comply with the requirements of offer of judgment statute -- Trial court properly denied defendant's request to compel personal representative to satisfy judgment for fees and costs by using monies recovered for survivors in earlier settlements with co-defendants -- Because personal representative, as the statutorily-appointed party plaintiff in wrongful death case, is merely a conduit for settlement proceeds, and he is duty-bound to apportion the proceeds equitably among the estate and the survivors, the personal representative has no authority to satisfy judgment for fees and costs from money he holds for the survivors -- Although defendant's judgment for fees and costs represents a Class I claim against estate, defendant is not entitled to settlement proceeds held by personal representative to satisfy claim, because only viable claims in wrongful death action were survivor claims of decedent's parents, and estate has no assets
RANDALL C. THOMPSON, as Personal Representative of the Estate of STEPHAN RANDALL THOMPSON, deceased, for the use and benefit of RANDALL C. THOMPSON and MARIAN THOMPSON, as surviving parents of STEPHAN RANDALL THOMPSON, deceased, Appellants, v. ANDREW K. HODSON, M.D., ANDREW K. HODSON, M.D., P.A., Appellee. 1st District. Case No. 1D99-2878. ANDREW K. HODSON, M.D., Appellant/Cross-Appellee, v. RANDALL C. THOMPSON, as Personal Representative of the Estate of STEPHAN RANDALL THOMPSON, deceased, for the use and benefit of RANDALL C. THOMPSON and MARIAN THOMPSON, as surviving parents of STEPHAN RANDALL THOMPSON, deceased, Appellee/Cross-Appellant. Case No. 1D99-4797. ANDREW K. HODSON, M.D., Appellant, v. THE ESTATE OF STEPHAN RANDALL THOMPSON, deceased, Appellee. Case No. 1D00-75. Opinion filed May 9, 2002. An appeal from the Circuit Court for Duval County. A. C. Soud, Jr., Judge. Counsel: Nolan Carter and Karen R. Wasson, Orlando, for Appellants. Robert C. Gobelman and Mary Bland Love of Gobelman, Love, Gavin, Blazs & Mathis, Jacksonville, for Appellee.
Torts -- Counties -- Sovereign immunity -- Claim for loss of consortium by wife of injured plaintiff -- Trial court properly entered summary judgment dismissing loss of consortium claim against county because of failure to give notice of claim to county and Department of Insurance as required by section 768.28, Florida Statutes -- Compliance with notice requirement was not excused because of fact that notice of personal injury claim was given prior to Florida Supreme Court decision holding that statutory notice is required for loss of consortium claim, where county was not added as defendant in case until after decision was announced -- Defendant county was not precluded by waiver or estoppel from asserting defense of lack of statutory notice where defendant asserted as affirmative defense that plaintiffs failed to comply with section 768.28 -- Lack of notice was not cured by fact that county took discovery regarding loss of consortium claim -- County's affirmative defense was not sufficiently particularized where it stated that plaintiffs failed to comply with provisions of section 768.28, but did not specify exactly how section 768.28 notice was deficient -- Since affirmative defense was insufficiently particularized, it was subject to being stricken with leave to replead, but no such relief was requested
MARIA DEL CARMEN CALERO, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee. 3rd District. Case No. 3D00-1444. L.T. Case No. 95-9376. Opinion filed May 9, 2001. An appeal from the Circuit Court for Dade County, Jon I. Gordon, Judge. Counsel: Rodney D. Logan; Bambi G. Blum, for appellant. Merritt & Sikes, P.A., and William C. Merritt, for appellee.
(Before COPE, GERSTEN and GREEN, JJ.)
Insurance -- Uninsured motorist -- Attorney's fees -- Offer of judgment -- Where action was brought against uninsured motorist insurer by insured for damages resulting from accident and by insured's wife for damages resulting from loss of consortium, insurer's offer of judgment which proposed settlement of both claims for a single amount was defective because it failed to comply with mandate of rule to specify amounts offered to each party -- Trial court properly denied award of attorney's fees to insurer pursuant to offer of judgment statute
UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. RAYMOND J. BEHAR, M.D., and SUSAN L. BEHAR, his wife, Appellees. 2nd District. Case No. 2D99-1592. Opinion filed January 21, 2000. Appeal from the Circuit Court for Pinellas County; John C. Lenderman, Judge. Counsel: Kimberly Staffa Mello of Adams, Byelick & Kiernan, St. Petersburg, for Appellant. David A. Maney and Lorena L. Kiely of Maney, Damsker & Jones, Tampa, for Appellees
Insurance -- Uninsured motorist -- Limit of coverage -- Each person/each accident -- Pain and suffering damages suffered by insured's wife and child as consequence of witnessing the death of insured in an Alabama automobile accident. Wife and child's pain and suffering damages, which were independently recoverable under applicable tort law of Alabama as part of their own bodily injuries arising from the accident, were subject to the “each accident” limit of coverage rather than the “each person” limit of coverage -- Trial court properly rejected iInsurance -- Uninsured motorist -- Limit of coverage -- Each person/each accident -- Pain and suffering damages suffered by insured's wife and child as consequence of witnessing the death nsurer's claim that proceeds available for wife and child's pain and suffering damages under policy's coverage provisions were exhausted when insurer paid husband's estate the policy limits for bodily injury for “each person”STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellant, v. BARBARA REIS and JOSEPH
Torts -- Workers' compensation -- Failure of employer to cooperate in investigating or prosecuting claims against third-party tortfeasors -- Limitation of actions -- Spoliation of evidence is one form of failing to cooperate under section 440.39(7) -- Where spoliation claim is not barred on its face by statute of limitations, failure to cooperate claim was not time-barredSUSAN YATES, Appellant, v. PUBLIX SUPER MARKETS, Appellee. 4th District.
Torts -- Sheriffs -- False arrest/imprisonment -- Trespass -- Battery -- Plaintiff who entered no contest plea to resisting arrest in criminal case is foreclosed from suing sheriff and deputies in civil action for damages arising from same incident -- Under Florida law, no contest plea constituted a “conviction” even though adjudication of guilt was withheld, and judgment of conviction is conclusive evidence of probable cause, unless judgment was obtained by fraud, perjury, or other corrupt means -- Summary judgment was properly entered in defendants' favor -- Contrary to plaintiff's arguments, claims against deputies were all related to lawfulness of his arrest, and lawfulness was established by the criminal proceedings -- As pleaded, plaintiff's battery claim involved acts that were simply part of the arrest process and did not involve a separate tort -- Statute relating to inadmissibility of pleas and statements made in connection with pleas or offers does not bar consideration of plaintiff's conviction simply because it was based on a no contest pleaKARL BEHM AND MARILYN BEHM, Appellant, v. TIMOTHY CAMPBELL, MICHAEL KELLY, ET AL., Appellee. 5th District.
Wrongful death -- Deputy sheriffs -- Sovereign immunity -- Qualified immunity -- Action against deputy sheriff who ordered intoxicated decedent to leave convenience store parking lot at nighttime and to walk down a two-lane, unlit rural highway with no sidewalks or paved shoulders, alleging deputy's liability for decedent's death as result of being hit by a car -- Error to enter summary judgment for defendant where there is factual issue as to whether defendant's actions put decedent into a more dangerous situation than if defendant had simply left him alone, and whether actions constituted a wanton and willful disregard of human rights or safetySANDRA LEMAY, AS PERSONAL REPRESENTATIVE, ETC., Appellant, v. MICHAEL KONDRK, Appellee. 5th District.
Torts -- Medical malpractice -- Hospitals -- Discovery -- Constitutional law -- Patient's Right to Know Amendment which provides that patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident -- Amendment preempts statutory privileges afforded health care providers regarding their self-policing procedures to the extent that such information is obtainable through a formal discovery request made by a patient or a patient's legal representative during the course of litigation -- Amendment is self-executing -- Amendment does not apply retroactively -- Questions certified: Does Amendment 7 preempt statutory privileges afforded health care providers' self-policing procedures to the extent that information obtained through those procedures is discoverable during the course of litigation by a patient against a health care provider? Is Amendment 7 self-executing? Should Amendment 7 be applied retroactively?FLORIDA HOSPITAL WATERMAN, INC., ETC., Petitioner, v. TERESA M. BUSTER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LARRY BUSTER, DECEASED, ET AL., Respondents. 5th District.
Insurance -- Class actions -- Standing -- Plaintiff who had obtained ruling that she was entitled to uninsured motorist coverage under Rental Supplementary Liability Insurance Excess Policy issued by defendant has standing to file class action complaint seeking declaratory judgment that plaintiff and other similarly situated individuals are entitled to uninsured motorist coverage and damages -- To satisfy the requirement of standing, plaintiff must show that a case or controversy exists between plaintiff and defendant, and that such case or controversy continues from the commencement through the existence of the litigation -- Plaintiff has standing because a final judgment has not been rendered on her claim for damages or defendant's liability -- Whether plaintiff is a proper class representative or whether there exists similarity of claims between the named plaintiff and the class members are questions addressed not by principles of standing, but, rather, by the application of the requirements for class action certificationMIRIAM NANCY FERREIRO individually, and on behalf of all others similarly situated, Appellant, vs. PHILADELPHIA INDEMNITY INSURANCE COMPANY, a foreign corporation, Appellee. 3rd District.
Torts -- Workers' compensation immunity -- Trial court properly dismissed complaint against workers' compensation insurance carrier alleging that carrier acted in bad faith during course of claims process, where complaint did not allege intentional and outrageous conduct that would establish an independent tortRONALD H. INGRAHAM, Appellant, vs. TRAVELERS INDEMNITY COMPANY, etc., et al., Appellees. 3rd District.
Torts -- Fall from ladder -- Duty of principal to see that instrumentalities that he provides to independent contractor are reasonably safe for use -- Action by plaintiff who was hired to pressure wash defendant's roof and who fell while descending ladder owned by defendant and loaned to plaintiff, alleging defendant negligently furnished defective ladder for plaintiff's use despite defendant's knowledge that ladder was dangerous and unsteady -- Issues of material fact were raised by affidavit of expert indicating that ladder was worn and improperly assembled, defects which were caused by age and mishandling rather than from manufacturing and which would cause ladder to be unsteady, subject to retraction and slipping -- Cause of action not defeated by fact that plaintiff did not remember exactly how accident occurred -- Because plaintiff presented evidence that ladder was dangerous and plaintiff fell while on ladder, and defendant failed to conclusively prove that he was not negligent or that his negligence was not proximate cause of plaintiff's injuries, it was error to enter summary judgment in favor of defendantJAIRO ORTIZ, Appellant, v. ARIEL LORIE, Appellee. 4th District.
Torts -- Legal malpractice -- Abuse of discretion to dismiss case with prejudice for fraud on court based on inconsistencies in plaintiffs' positions on certain issues where the majority of the inconsistencies highlighted by defendants occurred in underlying action and not during pendency of legal malpractice action, so they can hardly be said to constitute fraud on court in the legal malpractice action, and the few inconsistencies which occurred in legal malpractice action, which plaintiffs contended were not knowing deceptions, did not demonstrate blatant or extreme conduct necessary to prove fraud on courtANTHONY CHERUBINO and LUCY CHERUBINO, Appellants, v. FENSTERSHEIB AND FOX, P.A., Appellee. 4th District.
Insurance -- Uninsured motorist -- Settlement agreement -- Mediation -- Confidentiality -- Where settlement agreement plainly and unambiguously required insurer to pay plaintiff ``$75,000.00 by 2:00 p.m. on 7/20/01,'' trial court was required to enforce the contract according to its plain meaning -- Evidence adduced at hearing demonstrated that no mention was made during mediation of an offset of $40,000 to be credited to insurer and, accordingly, any mistake in failing to provide that settlement amount would be reduced by $40,000 insurer previously paid to plaintiff was unilateral mistake on insurer's part -- Court did not exceed its authority by considering evidence of what occurred during mediation proceedings -- Confidentiality privilege which attaches to communications made during court-ordered mediation did not apply where mediation resulted in settlement agreement signed by the parties, and one of the parties claimed that there was mutual mistake
ELLYN FELDMAN, Appellant, v. KARL KENNETH KRITCH AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellees. 4th District. Case No. 4D01-3564. Opinion filed August 21, 2002. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T. Case No. CL 99-8761 AN. Counsel: Joseph D. Farish, Jr. of the Law Office of Joseph D. Farish, Jr., LLC, West Palm Beach, for appellant. Patrick B. Flanagan of Flanagan, Maniotis & Berger, P.A., West Palm Beach, for appellee State Farm Mutual Automobile Insurance Company.
(SHAHOOD, J.) We reverse the trial court's order denying appellant's motion to enforce settlement agreement, and granting appellee's motion to set aside settlement agreement. We remand for further proceedings consistent with this opinion.
Appellant, Ellyn Feldman, was involved in a car accident with uninsured motorist, appellee, Karl Kritch. Appellant filed a claim for uninsured motorist benefits with her insurer, appellee, State Farm Mutual Automobile Insurance Co. (State Farm). Negotiations regarding appellant's uninsured motorist claim took place pre-suit, but the parties were unable to agree on a settlement amount. State Farm paid Feldman $40,000 pre-suit, which represented the amount of their initial offer to her. State Farm informed appellant's counsel that ``[t]he remaining coverage available will be reduced by the amount of this payment and this amount will be credited against any final determination of damages.''
Court-ordered mediation failed to reach a settlement. Following the failed mediation, the court entered an Order Setting Jury Trial. The form Order stated ``All parties are ordered to participate in mediation and mediation must occur no later than 45 days prior to calendar call and to comply with the attached Uniform Pretrial Order.'' Thereafter, the parties agreed for another mediation to take place. At the mediation, a settlement was reached, and an agreement, drafted by the mediator, and signed by the parties, stated as follows:
State Farm to pay plaintiff $75,000.00 by 2:00 p.m. on 7/20/01. Plaintiff to execute full release and file dismissal with prejudice. Each side to bear its own fees and costs. Plaintiff to pay all liens and subro rights.
After mediation, State Farm, filed a motion to set aside the settlement agreement on what it perceived as a misunderstanding as to whether the $75,000 was to be offset by the $40,000 previously paid, requiring a payment of only $35,000 as ``new money.'' Appellant then filed a motion to enforce settlement agreement and a response to State Farm's motion to set aside settlement.
At the hearing on the motions, appellant claimed that the mediation was court- ordered, and, therefore, all oral and written communications at mediation were confidential. Despite the parties disagreement over whether the mediation was court-ordered, the court, after hearing the parties' arguments regarding the settlement itself, concluded that there appeared to be a mutual mistake. Notwithstanding such conclusion, the court agreed to hear testimony, including that of the mediator himself, regarding the settlement negotiations.
State Farm's counsel admitted that the settlement agreement signed by the parties during mediation made no mention of State Farm's prior settlement proposal which had been rejected. The mediator also confirmed that the only amount offered by State Farm was $75,000. No discussion was had during mediation regarding an offset to State Farm for the $40,000 previously paid to appellant. Discussions regarding a credit to State Farm occurred just after mediation and post-settlement. At the conclusion of the hearing, the trial court granted State Farm's motion to set aside agreement finding that there was no meeting of the minds. We disagree.
Appellant claims that the trial court exceeded its authority in considering evidence in violation of section 44.102, Florida Statutes, and the Florida Rules of Certified and Court Appointed Mediators, in finding that the settlement agreement did not reflect the mutual intentions of the parties. Because State Farm claimed that there was a mutual mistake, the statutory privilege protecting the confidentiality of all oral and written communications, other than the executed settlement agreement, should not apply. See § 44.102(3), Fla. Stat. (2000); DR Lakes, Inc. v. Brandsmart U.S.A. of West Palm Beach, 27 Fla. L. Weekly D 1484, 2002 WL 1369825 (Fla. 4th DCA June 26, 2002).
In DR Lakes, this court explained that the reason for confidentiality as to statements made during mediation where a settlement agreement is not reached was obvious. See id. at * 2. ``Mediation could not take place if litigants had to worry about admissions against interest being offered into evidence at trial, if a settlement was not reached.'' Id. ``Once the parties in mediation have signed an agreement, however, the reasons for confidentiality are not as compelling.'' Id. In that case, the court held that the confidentiality privilege attached to communications made during court-ordered mediation, did not apply in a motion by a vendor of real estate to enforce terms of settlement agreement reached during mediation, where the vendor claimed that there was a mutual mistake in the form of a clerical error as to the purchase price set forth in the executed settlement agreement. See id. The court went on to state that on remand, in order to be entitled to relief, the vendor would have to establish that the clerical error was a mutual mistake:
When an instrument is drawn and executed which is intended to carry into execution an agreement but which by mistake of the draftsman violates or does not fulfill that intention, equity will reform the instrument so as to conform to the intent of the parties. Relief should be given where, through a mistake of the scrivener, the instrument contains [a]n clerical error or fails to define the terms as agreed on by the parties. (citations omitted).
Id. at * 3 (quoting Steffens v. Steffens, 422 So. 2d 963, 963 (Fla. 4th DCA 1982)). A mistake is mutual when the parties agree to one thing and then, due to either a scrivener's error or inadvertence, express something different in the written instrument. See Circle Mortgage Corp. v. Kline, 645 So. 2d 75, 78 (Fla. 4th DCA 1994). Such relief, however, is not available if there was a unilateral mistake. See DR Lakes, 2002 WL 1369825 at * 3 n. 2; see also Limehouse v. Smith, 797 So. 2d 15, 17 (Fla. 4th DCA 2001) (a party's performance under a contract is not excused on the basis of unilateral mistake when the mistake is the result of the party's own negligence and lack of foresight, or the other party has relied upon his performance so that rescission would be inequitable.).
Unlike DR Lakes, the evidence adduced at the hearing demonstrated that no mention was made during mediation of an offset of $40,000 to be credited to State Farm. Thus, any mistake was a unilateral mistake on the part of State Farm.
Here, the plain meaning of the words ``State Farm to pay plaintiff $75,000.00 by 2:00 p.m. on 7/20/01'' are unambiguous and not subject to any other construction or interpretation. Settlements are highly favored as a means to conserve judicial resources, and will be enforced when it is possible to do so. See Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483 (11th Cir. 1994); Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985). Settlements are construed in accordance with the rules for interpretation of contracts. See Robbie, 469 So. 2d at 1385; Long Term Mgmt., Inc. v. Univ. Nursing Care Ctr., Inc., 704 So. 2d 669, 673 (Fla. 1st DCA 1997). When a contract is clear and unambiguous, the court is required to enforce the contract according to its plain meaning. See Limehouse, 797 So. 2d at 17; see also BMW of N. Am., Inc. v. Krathen, 471 So. 2d 585 (Fla. 4th DCA), review denied, 484 So. 2d 7 (Fla. 1986). It is never the role of the trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain. See Barakat v. Broward County Hous. Auth., 771 So. 2d 1193, 1995 (Fla. 4th DCA 2000).
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. (GUNTHER and FARMER, JJ., concur.)
Torts -- Automobile accident -- Vicarious liability -- Dangerous instrumentality doctrine -- Conflicts of law -- Florida resident, hit and injured in Florida by car rented in Georgia and driven by Georgia resident, arguing vicarious liability of rental car company -- Under significant relationships test, Florida law rather than Georgia law should have been held to apply to issue of rental car company's vicarious liability because tort occurred in Florida, injuring Florida citizen, involving vehicle owned by company doing business in Florida, and promoting itself as rental car company to use when visiting Florida, and car was registered in Florida and bore Florida license plates -- Nothing unfair or disruptive of interstate relations in holding vehicle owner who leases its car in one state liable for lessee's negligent driving in another -- Application of Florida law consistent with Florida's policy of protecting its citizens from losses resulting from ownership and operation of motor vehicles -- Since car rental company is not Georgia corporation, Georgia has no interest in protecting car company from liability under Florida law -- Driver, Georgia resident, best protected by permitting remedy against rental car company -- Claim against car rental company should not have been dismissed
VERA MAY BROWN, Appellant, vs. NATIONAL CAR RENTAL SYSTEM, INC., Appellee. 3rd District. Case No. 97-2135. L.T. Case No. 96-10442. Opinion filed March 4, 1998. An appeal from the Circuit Court for Dade County, Amy Dean, Judge. Counsel: Lawrence & Daniels and Adam H. Lawrence; Thomas P. Feola, for appellant. Cooney, Mattson, Lance, Blackburn, Richards & O'Connor and Laura S. Douglas and Mark C. DiCarolis, for appellee.
(Before SCHWARTZ, C.J., and NESBITT and GREEN, JJ.)
ALLSTATE INDEMNITY COMPANY v. RUIZ, 780 So.2d 239 (Fla. 4DCA 2001). Supreme Court Case No. SC01-893 (Allstate Indemnity Company v. Ruiz). Order dated September 25, 2001. Oral argument set for March 5, 2002. Insurance -- Automobile -- Bad faith -- Unfair claim settlement practices -- Insured's action against insurer -- Discovery -- Privilege -- Work product privilege attaches to documents prepared in contemplation of litigation and not for ``mere likelihood of litigation'' -- No error in requiring insurer to produce agent's statement of certain date, computer diaries and entries from date insured reported accident through certain date, and internal memorandum from claims adjuster to her boss -- With respect to certain other documents, court finds they were prepared in anticipation of litigation and are protected, and insureds have not met burden to overcome privilege.
AMERISURE INSURANCE COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, 865 So.2d 590 (Fla. 2DCA 2004). Supreme Court Case No. SC04-387 (Amerisure Insurance Company v. State Farm Mutual Automobile Insurance Company). Order dated September 10, 2004. Oral argument set for December 8, 2004. Insurance -- Personal injury protection -- Reimbursement -- PIP insurer seeking reimbursement from insurer of owner of commercial motor vehicle which insured was driving at time of accident -- Constitutionality of statute -- Equal protection -- Plain language of section 627.7405 provides for reimbursement of insurer providing PIP benefits on private passenger vehicle by owner or insurer of the owner of commercial vehicle without regard to fault -- Statute bears rational relationship to legitimate state interest in reducing overall automobile insurance rates -- Conflict certified.
BURCH v. SUN STATE FORD, INC., 864 So.2d 466 (Fla. 5DCA 2004). Supreme Court Case No. SC04-157 (Sun State Ford, Inc. v. Burch). Order dated June 28, 2004. Oral argument set for November 4, 2004. Wrongful death -- Automobile accident -- Vicarious liability -- Dangerous instrumentality doctrine -- Error to find that owner of rental vehicle was not vicariously liable because operator's manner of driving the vehicle amounted to intentional misconduct -- Dangerous instrumentality doctrine applies even when operator is involved in intentional misconduct unless the operator makes weapon-like use of the vehicle with the intent to cause physical harm -- If weapon-like use of vehicle is reasonably foreseeable to owner, liability will be imputed -- Because this analysis involves operator's state of mind, it will ordinarily be a question of fact for the jury -- Summary judgment in favor of owner of vehicle was improper where operator's intent in following and then chasing decedent's vehicle was unclear.
CABEZAS v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, 830 So.2d 156 (Fla. 3DCA 2002). Supreme Court Case No. SC02-2654 (Cabezas v. Florida Farm Bureau Casualty Insurance Company). Order dated July 11, 2003. Oral argument set for January 6, 2004. Insurance -- Homeowners -- Liability -- Exclusions -- Intentional acts -- Where insured, while investigating damage to his vehicle after accident, heard someone behind him, turned around and saw hands in the air, and, believing that he was going to be hit, reacted quickly and punched plaintiff on the side of the head, intentional acts exclusion was applicable, and homeowners policy provided no coverage for injuries suffered by plaintiff as result of blow to his head -- Where complaint alleged that insured either intentionally struck plaintiff or intentionally struck plaintiff based upon an erroneous belief that he was an assailant, the intentional act falls within the exclusion of the homeowners policy -- Even if insured's acts were deemed to be in self defense, such acts would be excluded from coverage under intentional acts exclusion -- Insurer had no duty to defend or indemnify insured where allegations of complaint, when fairly read, did not bring case within coverage
PADILLA v. LIBERTY MUTUAL INSURANCE COMPANY, __ So.2d __, 28 Fla. L. Weekly D1679b (Fla. 3DCA 2003). Supreme Court Case No. SC03-1432 (Padilla v. Liberty Mutual Insurance Company). Order dated April 20, 2004. Oral argument set for August 31, 2004. Insurance -- Personal injury protection -- Transportation expenses -- Class actions seeking to challenge as too low and not reasonable the 32.5 cents per mile travel reimbursement benefit paid to PIP insureds for automobile travel expenses incurred while driving to and from medical providers -- Actions properly dismissed -- Section 627.736(1)(a), Florida Statutes does not provide for payment of automobile travel expenses for travel to and from medical providers -- Conflict certified
SHEA v. GLOBAL TRAVEL MARKETING, INC., __ So.2d __, 28 Fla. L. Weekly D2004e (Fla. 4DCA 2003). Supreme Court Case No. SC03-1704 (Global Travel Marketing, Inc. v. Shea). Order dated May 3, 2004. Oral argument set for August 31, 2004. Wrongful death -- Arbitration -- Action by father, as personal representative for estate of his deceased minor son, against operator of safari, alleging that defendant's failure to use reasonable care in operation of safari resulted in child's death -- Under circumstances involving commercial travel opportunities, child's mother could not bind child to agreement to arbitrate -- Because child was not bound by arbitration agreement signed by his mother, father's survivor claim is not subject to arbitration because he was not a signatory to the contract -- Question certified: Whether a parent's agreement in a commercial travel contract to binding arbitration on behalf of a minor child with respect to prospective tort claims arising in the course of such travel is enforceable as to the minor -- Trial court erred in entering order determining that defendant was entitled to arbitration.
Torts -- Cruise lines -- Slip and fall -- Action by plaintiff who slipped and fell on a two-step flight of stairs leading from deck to shower area on cruise ship, alleging that steps were defective because the two steps had different riser heights -- Evidence -- Error to exclude from evidence an injury report prepared by nurse which contained statement that plaintiff fell as she went down the steps where such evidence was offered to rebut defendant's contention that plaintiff fell before starting down the steps but changed her testimony after consulting with her attorney -- Evidence was admissible to rebut charge of recent fabrication -- Court properly admitted form provided by plaintiff's medical insurance provider which contained plaintiff's statement that she was standing at the top of steps and fell when she went to start down -- Evidence was admissible as a prior inconsistent statement for impeachment purposes -- Jury instructions -- Error to give defendant's jury instruction which was not a correct statement of Florida law because plaintiff did not have to be unaware of danger in order to recover
MARY JANE BRISCOE, Appellant, v. CELEBRITY CRUISES, INC., Appellee. 3rd District. Case No. 3D03-1533. L.T. Case No. 02-2946. Opinion filed February 23, 2005. An Appeal from the Circuit Court for Miami-Dade County, Maxine Cohen Lando, Judge. Counsel: Paul M. Hoffman; and Philip D. Parrish, for appellant. Mase, Gassenheimer & Lara, and Christopher J. Bailey, for appellee.
(Before RAMIREZ, WELLS, and SHEPHERD, JJ.)
(RAMIREZ, J.) Mary Jane Briscoe appeals an adverse jury verdict in her action which arises from a slip and fall accident on a two-step flight of stairs aboard one of the vessels owned by the appellee, Celebrity Cruises, Inc.
The steps in question connected the deck to the shower area. Briscoe's suit alleged a design defect based on her liability expert's opinion that she fell because the two steps had different riser heights. The expert conceded that his opinion assumed that Briscoe made it down onto the second step, i.e., the shower area floor. Thus, the location of her fall was a crucial feature of the trial.
At trial, Briscoe testified that she approached the stairs with caution because the deck was slippery. There was no handrail so she put her left hand out to steady herself. She was unsure how she fell, but she recalled that she took the first step with her right leg, and then placed her left foot down on the second step onto the shower floor.
Celebrity maintained that Briscoe had fallen at the top of the steps, and that she had fabricated her testimony after she retained a lawyer and filed suit. Captain Demitrios Kafetizis testified that Briscoe told him that she was intending to go down the stairs and fell on the first step.
At issue in this appeal is a document prepared by nurse C. Sanderson and a form provided by Briscoe's medical insurance provider that described Briscoe's accident. The first one, called an injury report, contains Briscoe's statement that she fell as she went down the steps; that she did not know why she fell; and that she just slipped. Celebrity objected to the introduction of the report based on hearsay. Briscoe maintained that the report constituted a medical/business record, and was relevant to rebut Celebrity's claim of recent fabrication. The court ruled that the report resembled an accident report and was inadmissible hearsay.
In the insurance form, Briscoe stated that she was standing at the top of two or three steps and fell when she went to start down. Celebrity argued that this form, although hearsay, constituted an admission against interest by Briscoe. The trial court held that Celebrity could offer it as a prior inconsistent statement for impeachment purposes only.
Although we find no error in the use of the insurance form for impeachment, we conclude that the excluded injury report should have been admitted as non-hearsay testimony because the report was consistent with Briscoe's trial testimony, she was subject to cross-examination, and the report was offered to rebut an express charge of recent fabrication. Celebrity's defense was that Briscoe fell at the top -- before starting down the steps. The injury report clearly quotes Briscoe as stating: “I was going down the steps and I slipped.” This report was prepared on the same day of the accident. It thus contradicted Celebrity's accusation that Briscoe changed her testimony after consulting with her attorney, which is classic non-hearsay under section 90.801(c)(2)(b), Florida Statutes (2002). Because this was such a hotly-contested issue, we determine that the error was harmful.
At the charge conference, both parties presented their proposed jury instructions. On the issue of negligence, Briscoe requested that the jury be instructed pursuant to Florida Standard Jury Instructions 3.5(f). Celebrity objected to Briscoe's proposed instruction and proposed its own instruction. Briscoe objected to Celebrity's proposed instruction before jury deliberations began. The court subsequently instructed the jury using Celebrity's instructions. This was error because the court substituted the word “and” for the word “or” in the standard instruction. Celebrity's jury instruction was not a correct statement of Florida law because Briscoe did not have to be unaware of the danger in order to recover. See Carnival Corp. v. Hertz Corp., 748 So. 2d 323, 325 (Fla. 3d DCA 1999). (“Jury instructions should not mislead or confuse the jury and must be supported by facts in evidence.”).
Insurance -- Commercial general liability -- Exclusions -- Products-completed operations hazard -- Action by municipalities against insured gun manufacturer for cost of medical and other services incurred as result of gun violence in communities -- Language in policies excluding from coverage “all bodily injury and property damage occurring away from premises you own or rent and arising out of your product” excludes coverage for suits brought against gun manufacturer by municipalities -- Plain language of exclusion excludes coverage for all product-related injuries, not merely defective products -- Phrase “arising out of your product” in exclusion is not ambiguous, and should be interpreted broadlyTAURUS HOLDINGS, INC., et al., Petitioners, vs. UNITED STATES FIDELITY AND GUARANTY COMPANY, et al., Respondents. Supreme Court of Florida.
Torts -- Dismissal -- Abuse of discretion to dismiss complaint with prejudice based on fraud on court after finding that plaintiff misrepresented, during discovery, the nature of his injuries to his neck and shoulder from a prior accident and failed to disclose a 1995 accident -- Evidence did not support conclusion that plaintiff's failure to remember being treated for neck and shoulder seven years prior to giving his deposition was an unconscionable scheme calculated to interfere with judicial system's ability to impartially adjudicate the matter -- While plaintiff was ultimately incorrect in his recall of past events, he clearly did not intentionally seek to hide relevant information from opposing counselWILLIE CROSS, Appellant, v. PUMPCO, INC., a foreign corporation, and TARMAC AMERICA, LLC, a foreign corporation, Appellees. 4th District.
Torts -- Automobile accident -- Discovery -- Work product privilege -- Investigators hired by defendant to perform investigations and surveillance on activities and injuries of plaintiff -- Although trial court properly denied defendant's initial motion for protective order to prohibit depositions duces tecum of investigators because defendant had included investigators on witness list, court improperly denied defendant's motion for rehearing of the denial of motion for protective order after defendant had filed amended witness list that no longer contained names of investigators -- Since investigators are no longer listed as witnesses, any documents, reports, or video tapes prepared by the investigators are now protected by work product privilege -- Plaintiff cannot obtain indirectly what cannot be obtained directly by merely labeling the contents of the investigators' reports as “observations” -- Order denying defendant's motion for rehearing quashed without prejudice to plaintiff to make required showing of exceptional circumstances needed to overcome work product privilegeWARD L. HUET AND JOAN HUET, HIS WIFE, Petitioners, v. HILLARY TROMP AND ANDRE TROMP, HER HUSBAND, Respondents. 5th District.
Insurance -- Automobile liability -- Exclusions -- Trial court properly ruled that exclusion in automobile liability policy for any loss caused while insured is committing or attempting to commit a felony is void as against public policy -- Trial court did not abuse discretion in awarding attorney's fees pursuant to section 57.105 -- “Good faith effort to change existing law” theory as basis for avoiding liability for attorney's fees pursuant to section 57.105 is insufficient to demonstrate that trial court abused discretion in awarding fees, and is not considered by appellate court where raised for first time in appellant's reply briefMERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. ASHLEY COATNEY, as personal representative of THE ESTATE OF CEASAR L. COATNEY, DECEASED, WILLIAM H. MOODY, SR., and MARGARET MOODY, Appellees. 1st District.
Torts -- Attorney's fees -- Offer of settlement -- Error to award attorney's fees to plaintiffs on basis of unified offer of settlement made to defendant wife who ran stop sign and to defendant husband who was co-owner of vehicle driven by wife -- Under language of rule 1.442(c)(3), joint proposal for settlement is required to differentiate between parties, even when one party's alleged liability is purely vicariousCHERYL HEYMANN and JONATHAN P. HEYMANN, Appellants, v. GINA FREE and PAUL ANTHONY FREE, Appellees. 1st District.
Insurance -- Commercial general liability -- Additional insureds -- Where insured had contract with owner of building to perform janitorial functions in building, and policy listed building owner as an additional insured with respect to liability “arising out of” insured's ongoing operations performed for the building owner, building owner was an additional insured with respect to liability arising out of named insured's operations performed for building owner -- Because policy did not contain specific language limiting coverage to named insured's direct negligence, policy provided coverage to the additional insured building owner for its own negligence -- Insurer has duty to defend building owner in action alleging that building owner's negligence resulted in slip and fall in men's room in buildingKOALA MIAMI REALTY HOLDING CO., INC., Appellant, v. VALIANT INSURANCE CO., Appellee. 3rd District.
Torts -- Medical malpractice -- Pre-suit requirements -- Action against hospital and emergency room physician alleging that after plaintiff admitted herself to hospital emergency room the emergency room physician involuntarily admitted plaintiff to hospital in violation of Baker Act, that plaintiff was kept at hospital against her will, and that plaintiff was mistreated by hospital employees -- Claim was one arising out of rendering of medical care, and medical malpractice pre-suit requirements were applicable -- Plaintiff was not entitled to certiorari relief from orders abating her claims against physician and hospital pending completion of pre-suit process -- Petition for writ of certiorari as to physician was untimely where it was not filed within thirty days of rendition of the order to be reviewed -- Plaintiff is not entitled to certiorari relief as to hospital because there was no departure from essential requirements of law and because plaintiff has not demonstrated that there will be no adequate remedy after final judgmentNAOMI BLOM, Petitioner, v. ADVENTIST HEALTH SYSTEM/ SUNBELT, INC., ETC. ET AL., Respondent. 5th District.
Wrongful death -- Amateur boxing -- Venue -- Action alleging negligence by Michigan promoters of amateur boxing contest and referee of contest and asserting premises liability against corporation that controlled events at arena where contest occurred -- Provision in release and waiver agreement signed by decedent when entering contest requiring that jurisdiction for any dispute related to document would be in Michigan did not require that wrongful death action be brought in Michigan -- Action against Michigan parties was not founded on release or any of the several other documents decedent signed before participating in contest, but sprung from decedent's involvement in the event and the defendants' alleged negligence when conducting it -- Even if venue provision embraced tort action against Michigan corporations, provision, which stated that decedent “consent[ed] and agree[d]” that jurisdiction shall be in Michigan, was permissive rather than mandatory when applied to suit initiated by decedent or her successor in interest -- Consent is hallmark of a permissive venue provision -- When venue clause employs contradictory terms and is susceptible of more than one interpretation, it should be construed against drafter -- Moreover, clause reflected only the consent of decedent, and this unilateral consent could be read to mean that the provision would apply only to actions brought against decedent, for which purposes she was subjecting herself to jurisdiction in Michigan defendants' home forum -- Denial of motions to dismiss or for change of venue was correct, although trial court's stated reason for denying the motions, which was that enforcing venue provision would contravene public policy, was incorrectAMERICAN BOXING & ATHLETIC ASSOCIATION, INC., and ADOREABLE PROMOTIONS, INC., Appellants, v. ROBERT CHARLES YOUNG, as Personal Representative of the Estate of STACY YOUNG, Deceased, Appellee. 2nd District.
Torts -- Amateur boxing -- Venue -- Action by plaintiff who was seriously injured in amateur boxing competition, alleging negligence by Michigan promoters of amateur boxing contest, referee of contest and others and premises liability against corporation that controlled events at arena where contest occurred -- No error in denying Michigan defendant's motion to dismiss or to transfer venue to Michigan on ground that enforcing venue provision would result in multiple lawsuits, split causes of action, and create potential for conflicting results in Florida and Michigan -- Necessity of multiple suits in different venues may provide compelling reason not to enforce a venue agreement, and tort allegations against various defendants, two of which submitted to jurisdiction of Florida court and likely could not be haled into court in Michigan, are intertwined and based on same incident -- Moreover, court has held in separate opinion stemming from same contest and involving identical release, that venue selection provision contained in release does not apply to tort actions and is permissive rather than mandatoryARTHUR P. DORE, Appellant, v. TONY L. ROTEN and KELLY ROTEN, Appellees. 2nd District
Torts -- Electric utilities -- Action by mechanic employed by equipment company which rented trucks with aerial lifts for injuries sustained when machine he was operating came into contact with overhead power line owned and maintained by defendant electric utility -- Foreseeable zone of risk created by placement of power lines did not extend to cover plaintiff's operation of aerial boom, and law did not impose legal duty upon utility to lessen the risk that, in attempting to comply with employer's storage policy for its machines, an employee's negligent operation of an aerial lift would cause it to come into contact with power lines -- Power lines were in plain view and complied with applicable safety codes, plaintiff knew that contact between aerial lift and power lines would injure him, and, given extensive warnings on machine and in owner's manual, plaintiff would be expected to anticipate danger of raising boom to within even 10 feet of power lines -- Rule 234 of National Electrical Safety Code, which provides the minimum horizontal clearance for power lines, does not apply to mobile structure, such as an aerial lift machine, which may move from place to place -- No error in entering summary judgment in favor of utility companyMICHAEL BIGLEN, Appellant, v. FLORIDA POWER & LIGHT COMPANY, WARR PROPERTIES, L.L.C., AMERICAN AERIAL LIFT, INC., a Florida corporation, PRIME SERVICE, INC., a Delaware corporation, authorized to do business in the State of Florida, and TOWN OF DAVIE, a political subdivision of the State of Florida, Appellees. 4th District.
Torts -- Medical malpractice -- Settlement -- Enforcement -- No error in trial court's refusal to enter judgment of enforcement given procedural irregularities in motion to enforce settlement -- Movants will be entitled to immediate enforcement of settlement by appropriate judgment upon compliance with procedural requirements -- Physician's arguments are insufficient as matter of law to prevent claimant and insurance carrier from settling medical malpractice action -- Physician's pending bad faith claims against insurer for entering into settlement without his consent may not be used to delay or impair entitlement of settling parties to immediate enforcement of their settlementBLOSSOM COHEN, ABRAHAM COHEN and MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA, Appellants, v. MARK FREEMAN, and MARK FREEMAN, M.D. P.A., Appellees. 4th District.
Torts -- Product liability -- Asbestos -- Civil procedure -- Dismissal -- Timeliness of motion -- Error to grant motion to dismiss based on forum non conveniens where motion was filed more than sixty days after service of complaint -- As for defendant's argument for equitable estoppel exception to 60-day rule, circumstances of case do not warrant such an exceptionROY J. FOX, Appellant, v. UNION CARBIDE CORPORATION, Appellee. 4th District.
Wrongful death -- Drowning -- Action against owner of home with pool in which children were drowned while mother was staying as guest with tenant of owner's pool house -- Error to allow jury to consider statutory and zoning violations which were not applicable -- New trial required on liabilityLOUIS A. PISANI, Appellant, v. JAMES R. DUFFIN, JR., as Personal Representative of the Estates of Amber Fae Duffin and Tyler James Richard Meyer, Appellee. 4th District.
Insurance -- Personal injury protection -- Attorney's fees -- Appellate -- Where an insured loses an appeal, but the matter is remanded for a new trial, the insured is not entitled to any appellate attorney's fees for the appeal which the insured has lost -- Conflict certifiedBRASS & SINGER, P.A., a/o/a MILDRED SOLAGES, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. 3rd District.
Torts -- Mandamus -- Prisoners -- Medical treatment -- Complaint in which plaintiff, a state prisoner, complained about medical care received from prison and sought additional, different, treatment and monetary damages, which complaint trial court treated as mandamus petition and dismissed with prejudice -- With respect to claim for different treatment, mandamus relief was properly denied because prison does not have duty to provide a particular treatment -- With respect to claim for monetary damages, trial court erred in dismissing complaint with prejudice -- Because no responsive pleading had been filed, trial court had no discretion to deny prisoner's request to amend complaint -- Even if motion for rehearing were treated as amendment, plaintiff should have been given another opportunity to amend because he believed that he needed leave of court and he had not abused privilegeCHARLES HAWKINS, Appellant, v. JAMES V. CROSBY, JR., WILLIE L. FLOYD, SR., JEAN DAUPHIN, and MARILYN F. BURNS, Appellee. 4th District.
We reverse and remand for a new trial.
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