I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy.    Yet, in a different context, this case deals with a trial court striking a defendant’s (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial.

“The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of discretion.” Estrada, supra (internal citations omitted).

In this case, the jury was not able to consider the application of an affirmative defense because the trial court struck the affirmative defense prior to trial.  The trial court also would not allow the defendant to amend the affirmative defense.  There would not have been any prejudice to the plaintiff in allowing an amendment since the substance of the amended defense was based on facts already in the record. “Because we are unable to conclude that this error was harmless and that the jury would have rejected this defense, we are compelled to reverse the final judgment on review and remand for a new trial.”  Estrada, supra.  Stated differently, the appellate court ordered a new trial because the jury was not able to consider this affirmative defense and there was nothing to indicate the jury would have rejected this defense (had the jury considered it). 

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A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5^thDCA 2019).   What about a party’s statement within a medical record (double hearsay – hearsay within hearsay)?  Well, that hearsay statement may be admissible if another exception permits its admissibility.  Once such exception that could apply is an admission by a party opponent. 

For instance, in Strong, a person driving a motorcycle collided with an SUV.  The motorcyclist sued the driver of the SUV.  An issue on appeal pertained a statement in a medical record by the motorcyclist’s treating physician as to how the accident occurred (double hearsay – a hearsay statement within a business record). 

The motorcyclist told her treating physician’s staff that one of her tires blew and she collided with the SUV, and this was included by her treating physician in the medical report.  The trial court denied the admissibility of the statement at trial because it was not made directly to the doctor, but to someone on his staff. The appellate court held the motorcyclist’s statement contained in the medical record was admissible under the hearsay exception–an admission by a party opponent–even though the statement was not made directly to the doctor since it was included in the business record (medical report) and the doctor prepared the report based on information transmitted to him by a person with knowledge of that statement:

[A] statement is not rendered inadmissible merely because it passed through two declarants. Rather, the statement will be admissible as long as each level of hearsay is covered by an exception.  Here, irrespective of which trauma team employee actually took Mrs. Underwood’s [motorcyclist] statement, the conveyance of the statement to Dr. Cheatham [treating physician] would have occurred between two employees of the same company in the course of business.  Dr. Cheatham would then have prepared the report from information transmitted by a person with knowledge of the statement.  As such, even if the statement was not made directly to Dr. Cheatham, each layer of hearsay is covered by the business records exception.

Strong, supra(internal citations and quotations omitted).

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In the premise liability context:

[T]he obvious danger doctrine provides that a landowner “is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party….” However, this protection does not extend to situations where the landowner “should anticipate the harm despite the fact that the dangerous condition is open and obvious.” To determine whether the obvious danger doctrine applies, a court must “consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.”

Shipman v. CP Sanibel, LLC, 2019 WL 2301599, *4 (M.D.Fla. 2019) (internal citations omitted).

For example, in Shipman, the plaintiff was an invitee of a resort. She slipped and fell on water that accumulated on a non-slip resistant tile floor in an open-air lounge adjacent to the pool. There is a sign at the open-air lounge that advises patrons to towel off before walking on the tile. There is also usually a wet floor sign to warn patrons that the tile floor might be wet; however, on the day the plaintiff slipped, the wet floor sign was not present. Those in Hollywood, FL, may wish to reach out to a Florida slip and fall accident attorney to take legal action against someone for injuries they have sustained.

On a summary judgment motion in federal court, one issue was the application of the obvious danger doctrine. The trial court found that there was an issue of fact as to whether the obvious danger doctrine applied. Even if water on the tile in the open-air lounge was open and obvious, there was a factual issue as to whether the resort should have warned the plaintiff of the condition, i.e., the resort should have anticipated the harm that water on the lounge’s tile floor poses. This is supported by the fact that the resort usually has a wet floor sign to warn patrons of this fact, but did not have the sign on the date in question. Moreover, there was also a factual issue as to whether the resort kept its premises in a reasonably safe condition by allowing non-slip resistant tile to remain wet in a location adjacent to the pool.

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I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign.  Such documents are intended to have legal effect.

By way of example, in Fresnedo v. Porky’s Gym III, Inc., 44 Fla. L. Weekly D1029a (Fla. 3d DCA 2019), the plaintiff sued his gym in negligence claiming he was injured by another person in the gym after this other person attacked him.  The gym relied on a waiver and release document the plaintiff signed in order to become a gym member claiming the plaintiff released it of all liability. 

A waiver and release clause in a document is referred to as an exculpatory clause.

Exculpatory clauses, such as the one at issue here, that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability.  In addition, courts are required to read such clauses in pari materia, giving meaning to each of its provisions, to determine whether the intention to be relieved was made clear and unequivocal in the contract, such that an ordinary person would know what he was contracting away. 

Fresnedo, supra (internal quotations and citations omitted).

The court analyzed the entire waiver and release document (since it was reviewed in pari materia with the other clauses in the document) and determined that the exculpatory clause (waiver and release) did NOT clearly and unequivocally waive the gym’s liability for the type of negligence alleged by the plaintiff in his complaint.  In particular, the waiver and release was not unequivocal that it released the gym if the plaintiff was injured from an altercation with another person at the gym. 

Had the waiver and release clause in the document been clear and unequivocal, the plaintiff would probably be out of luck in his suit against the gym.  The fact that the gym’s waiver and release was not clear gave the plaintiff the ability to bypass the waiver and release and sue the gym for negligence.

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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A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days.  In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney’s fees.   There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation.  There are definitely strategic issues that must be considered when serving a proposal for settlement.  

Two things to note when serving a proposal for settlement:

• The proposal for settlement cannot be served right off the bat.  A proposal for settlement to a plaintiff cannot be served until 90 days after the action has been commenced.  A proposal for settlement to a defendant cannot be served until 90 days after the defendant was served with the lawsuit. 

•  A trial court’s stay of the lawsuit does not stay the proposal for settlement requirements.  For instance, in Old Dominion Ins. Co. v. Tipton, 44 Fla. L. Weekly D1102a (Fla. 2d DCA 2019), a lawsuit was stayed and as soon as the stay was lifted the defendant served the plaintiff a proposal for settlement.  The plaintiff argued that the prior stay precluded the defendant from serving the proposal because, when factoring in the stay, the proposal was served prematurely before the expiration of the 90-day period.  The appellate court disagreed finding that the stay, itself, did not toll the proposal for settlement requirements.

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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