I have discussed the importance of jury instructions. Time should be taken crafting applicable jury instructions based on the law to discuss during the charging conference where the judge determines the jury instructions to read to the jury. What happens if a court reads a misleading and incorrect jury instruction? Final judgment may be reversed and a new trial ordered–reversible error!

In a first-party property insurance coverage dispute, the court read a jury instruction relating to the insured and insurer’s burden of proof. The jury instruction, however, was confusing and contained an incorrect burden of proof for the insurer. As a result, the jury found in favor of the insured and a final judgment was rendered. The Second District reversed the final judgment because the burden of proof jury instruction was misleading and incorrect potentially leading the jury to reach a conclusion it might not have reached had the jury instruction not been misleading and incorrect. Citizens Property insurance Corp. v. Salkey, 41 Fla. L. Weekly D509a (Fla. 2d DCA 2016); see also Allstate Ins. Co. v. Vanater, 297 So.2d 293 (Fla. 2000) (explaining that an erroneous jury instruction concerning the burden of proof is reversible error because it could lead the jury to reach a conclusion it might not have reached had the jury instruction been correct).

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I want to discuss the concept of a “Fabre defendant.” This is an important concept in negligence cases, particularly personal injury and property damage cases.

“A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly of partially responsible for the negligence alleged [by the plaintiff].” Salazar v. Helicopter Structural & Maintenance, Inc., 986 So.2d 620, n.1 (Fla.2d DCA 2007).

As further explained in Florida Statute s. 768.81(3):

(3) Apportionment of damages.–In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

(a) 1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.

2. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.

This means in order to allocate fault to a Fabre defendant (a nonparty) the named defendant must a) plead the fault of the nonparty and identify the nonparty in an affirmative defense, and, importantly b) prove at trial by a preponderance of evidence the fault of the nonparty (the Fabre defendant) causing plaintiff’s injuries in order to get that nonparty on the verdict form for purposes of having the jury allocate damages to the nonparty.  

Simply identifying the nonparty in an affirmative defense is not good enough. The burden of proof is on the named defendant to prove the nonparty’s negligence at trial to get that nonparty on the verdict form as a Fabre defendant. R.J. Reynolds Tobacco Company v. Grossman, 96 So.3d 917, 919-20 (Fla. 4^th DCA 2012) (nonparty Fabre defendant may not be included on verdict form until defendant proves nonparty’s negligence at trial) . However, a named defendant cannot rely on the vicarious liability of a nonparty to prove that nonparty’s fault in order to get that nonparty identified on the verdict form. See Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262, 1263 (Fla. 1996) (security company could not name hospital that hired it as Fabre defendant since hospital would only be vicariously liable based on the negligence of the security company).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases.

In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4^th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining the borrower’s objection to hearsay based on the lender not properly laying the foundation for the business records exception to the hearsay rule. (An involuntary dismissal is essentially the same thing as a directed verdict in a non-jury bench trial. Similar to a directed verdict, the standard of appellate review for a motion for involuntary dismissal is de novo. See Wells Fargo Bank, supra.) The trial court sustained the hearsay objection because the loan servicer’s records custodian witness was unable to describe the specialized computer programs utilized to generate the payment history and default notice. The trial court’s ruling in sustaining the objection precluded the lender from presenting the payment history and the default notice into evidence meaning the lender could not prove its case at trial. The Fourth District Court of Appeal reversed.

The Fourth District explained that a testifying witness establishing the business records exception to the hearsay rule “need not be the person who actually prepared the business records. Instead, the witness just need be well enough acquainted with the [record keeping] activity to provide testimony.” Wells Fargo Bank, supra (internal quotations and citation omitted).

While the witness was not familiar with how data was entered into the computer system, there is no requirement that the witness have such knowledge to satisfy the business records exception to the hearsay rule. The witness was sufficiently familiar with the loan servicer’s practices and procedures in generating the payment history and notice of default to lay the foundation for the business records exception.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Your contract contains an arbitration provision meaning you are required to arbitrate your dispute instead of litigate your dispute (in court).  Nonetheless, your opponent files a lawsuit against you and you move to compel the dispute to arbitration pursuant to the arbitration provision in your contract.  But, the trial court denies your motion to compel arbitration based on its interpretation of the arbitration provision. So, what do you do? You file an interlocutory appeal to appeal this ruling since you want to arbitrate your dispute.  The appellate standard of review for the construction (interpretation) of an arbitration provision is de novo.  See MuniCommerce, LLC v. Navidor, Ltd., 41 Fla. L. Weekly D317b (Fla. 4th DCA 2016) (reversing trial court’s order compelling arbitration based on its construction of arbitration provision).  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Oftentimes, courts are required to engage in statutory construction and this statutory construction becomes a driving issue in the dispute. Statutory construction is the process of a court interpreting law and then applying that law to a set of facts. For example, if your case turns on the interpretation of a particular Florida statute applied to your facts, this would be statutory construction. 

On appeal, the issue of statutory construction is subject to a de novo standard of appellate review. Taylor Morrison Services, Inc. v. Ecos, 163 So.3d 1286, 1289 (Fla. 1^st DCA 2015). A de novo standard of review means the appellate court is going to review the trial court’s record anew without giving deference to the trial court.

I discussed the facts in Taylor Morrison Services here. The issue on appeal was whether a homebuilder (contractor) was unlicensed at the time of contract with the homeowners (per Florida Statutes Chapter 489). The trial court declared that the homebuilder was unlicensed by interpreting Florida’s licensing law and applying that law to the facts before it. In reviewing this issue on appeal (and ultimately reversing the trial court’s statutory construction), the First District stated:

The correctness of the trial court’s order turns on an issue of statutory construction, which is subject to de novo review. Proper statutory analysis begins with the plain language of the statute, which is to be considered in context, and not construed in a way that renders any portion of the statute meaningless. When the [statutory] language is unclear or ambiguous, it is appropriate to apply established principles of interpretation to discern the meaning of the governing text.

Taylor Morrison Services, 163 So.3d at 1289 (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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