In prior postings, I talked about Florida’s private Whistleblower Act and Florida’s Public Whistleblower Act dealing with retaliatory terminations.  

Besides these whistleblower protections, there is also protection in Florida’s Workers’ Compensation Law that states:

440.205 Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

To support an employment retaliation claim:

[A] plaintiff must prove the following three elements: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action.  In order to establish a claim under section 440.205, the employee’s pursuit of workers’ compensation need not be the only reason for a discharge.

Salus v. Island Hospitality Florida Management, Inc., 45 Fla. L. Weekly D103a (Fla. 4^th DCA 2020) (internal quotations and citations omitted).

In Salus, a former employee filed a retaliatory discharge claim under Florida Statute s. 44.205 claiming he was terminated for filing a workers’ compensation claim.  The employer argued, and the trial court agreed by granting summary judgment in favor of the employer, that there was no retaliatory discharge because the employee was terminated prior to filing the workers’ compensation claim.  The Fourth District Court of Appeal held it was error to grant summary judgment in favor of the employer.

The employee sustained an injury prior to his termination and notified his employer of the injury. The employee also notified the employer that he was having trouble receiving treatment for the injuries and obtained the information he needed from the employer to file a claim for benefits.  The employer fired the employee less than two weeks after the employee sustained the injury, but before the workers’ compensation claim for benefits had been filed.

The employer argued the termination had nothing to do with the workers’ compensation claim.  Rather, the employer had evidence to support an incident where the employee became angry and threatened to fight a co-worker.  Naturally, the employee disputed this incident.

The Fourth District Court of Appeal held that the fact that the employee did not formally file a workers’ compensation claim until after he was terminated did not deprive him of retaliatory discharge protection.  The employee had effectively sought benefits by notifying his employer of the injury, the trouble he was having obtaining treatment, and obtained information he needed to submit a claim.  An employer cannot circumvent an employee’s protection by terminating him prior to the employee formally filing a claim for worker’s compensation benefits.

Where, as here, [the employee] establishes a prima facie case by proving the protected activity and the negative employment action are not completely unrelated, the burden then shifts to the employer to proffer a legitimate reason for the adverse employment action.  A plaintiff withstands summary adjudication at this stage either by producing sufficient evidence to permit a reasonable finder of fact to conclude the employer’s proffered reasons were not what actually motivated its conduct, or that the proffered reasons are not worthy of belief.  In moving for summary judgment, the employer argued that it had a legitimate, nondiscriminatory reason for terminating the employee: that the employee threatened a coworker. However, the employee disputed this claim in his deposition and denied that he threatened a coworker. Thus, a genuine issue of material fact exists as to the reason for termination, precluding summary judgment. 

Salus, supra (internal quotations and citations omitted).

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Non-compete provisions are not always fair.  The same can probably be said about non-solicitation provisions.  Typically, these provisions (referred to as restrictive covenants) are included in an employment agreement as a condition of employment.  But, if there is a legitimate business interest for these provisions, and they are limited in scope, they are enforceable and relief, including injunctive relief, can be sought.   

Restrictive covenants in employment-related agreements, such as a non-compete and non-solicitation provision, are governed by Florida Statute s. 542.335. 

A party (e.g., employer) seeking a temporary injunction against another (e.g., employee) must demonstrate four elements: “(1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) that a temporary injunction will serve the public interest.”  Picture It Sold Photography, LLC v. Bunkelman, 45 Fla. L. Weekly D74a (Fla. 4^th DCA 2020).(citation omitted).

An example of an employer moving to enforce such restrictive covenants can be found in Bunkelman.  

The employer in this case provides photo and video services to the real estate industry (probably for listing purposes).  The employer hired an independent contractor and an independent contractor agreement was executed that included a non-compete and non-solicitation provision:

Independent Contractor agrees that he/she will not directly or indirectly do or attempt to do any of the following during Independent Contractor’s engagement (except in the faithful performance of his/her duties for the Company) or during the period of two years after the date of termination of Company’s engagement of Independent Contractor, within the Florida counties of Palm Beach, Broward, Martin and St. Lucie: solicit, employ, engage, hire, call on, compete for, sell to, divert, or take away any customer, supplier, endorser, advertiser or employee, agent, subagent, or independent contractor of Company or aid, assist or plan for anyone else to do so; divert or aid, assist or plan for others to divert from the Company any past or pending sale or exchange of any goods, product or service; entice, aid or cooperate with others in soliciting or enticing any employee, agent, subagent or independent contractor of the Company to leave, modify or terminate its relationship with the Company; participate in planning for any new or existing business that is or would be similar to the business of the Company or that does or would compete with the Company or solicit customers of the Company; accept any other employment or engagement that would call upon Independent Contractor to use, disclose or base judgments on the Company’s trade secrets or confidential information or to utilize the Company’s customer goodwill in making sales or other advantageous business relations for a business similar to or in competition with the Company’s business; compete against the Company for customers, suppliers, employees, agents or independent contractors; or own, manage, be employed by, be engaged by, work for, consult for, be an officer, director, partner, manager, employee, independent contractor or agent of, advise, represent, engage in, or carry on any business which is similar to the type of business engaged in by the Company at this time or on the date of termination of Independent Contractor’s engagement and which competes with the Company.

The independent contractor violated the agreement and solicited and worked for the employer’s customers.  In doing so, the independent contractor, without terminating the agreement, just stopped working for the employer and competed with the employer in the prohibitive areas set forth in the agreement.

The employer filed a lawsuit against the independent contractor for injunctive relief—to force the independent contractor to honor the agreement–and monetary damages.  

An evidentiary hearing was held in furtherance of a temporary injunction in favor of the employer.  The independent contractor testified he felt he was fraudulently induced into entering the agreement because he was promised he would make a certain amount of money and work predominantly in a certain location, neither of which panned out.  He testified that he provided and still provides services to the employer’s customers but introduced testimony from some of the employer’s former customers that said they would never use the employer again for reasons unrelated to the independent contractor. 

The trial court found that there was a legitimate business interest for the restrictive covenants and they were limited in scope (location) but denied the temporary injunction finding that the employer failed to establish it had an adequate remedy at law—element (2).  The trial court further found that the independent contractor’s fraudulent inducement defense had some traction and, therefore, seemed to find that the employer cannot prove a substantial likelihood of success on the merits—element (3).

The appellate court reversed and remanded to the trial court to enter a temporary injunction in favor of the employer.

As it pertained to element (2)—the unavailability of an adequate remedy at law—“[T]he continued breach of a non-compete agreement threatens a former employer’s ‘goodwill and relationships with its customers, and nothing short of an injunction would prevent this loss.’”  Bunkelman, supra (citation omitted).  The evidence established that the independent contractor continued to compete against the employer in violation of his agreement and still does work for and solicits customers he obtained from the employer.

As it pertained to element (3)—substantial likelihood of success on the merits—“Evidence that an enforceable covenant not to compete was breached will support a trial court’s finding of the likelihood of success on the merits.”  Bunkelman, supra (citation omitted).   The trial court was right to consider the independent contractor’s fraudulent inducement affirmative defense.  If there is evidence that the employer breached the agreement, the employer needs to establish it has a substantial likelihood of sucess on the merits of the defense.

In this case, there was no provision in the independent contractor agreement as to the independent contractor earning a particular salary or amount.  Rather, there was a fee schedule and the independent contractor testified he was paid by that fee schedule. Further, there was nothing in the agreement that promised the independent contractor that he would work predominantly in a certain geographic location.  The agreement stated it was the entire agreement between the parties. Thus, even if the independent contractor was promised something orally pre-contract, “a party cannot recover in fraud for oral misrepresentations that are later contradicted in a written contract.”  Bunkelman, supra.    (Finally, the independent contractor did not put on evidence to establish any justifiable reliance on the alleged salary and location misrepresentations to support the defense of fraudulent inducement).

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Thinking about suing a public official for defamation?  Think twice (or three or four times) before doing so.  Public officials acting within the scope of their duties enjoy absolute immunity from statements they make.  Stated differently, they are absolutely immune from a defamation lawsuit.   

In Quintero v. Diaz, 45 Fla. L. Weekly D51b (Fla. 3d DCA 2020), a former Director of Parks and Recreation for a city sued the Mayor of that City for defamation per se based on public defamatory statements contained in a termination letter.  The parties stipulated that the Mayor was acting within the scope of his public duties when he issued the termination letter. And, for purposes of a summary judgment hearing, the parties stipulated that statements in the letter were false, i.e., defamatory. 

Although the former Director of Parks and Recreation argued that absolute immunity should not apply when the statements are false, malicious, or badly motivated, irrespective of whether the public official was acting within the scope of his duties, the Third District Court of Appeal maintained that public officials enjoy the protection of absolute immunity when they are acting within the scope of their duties.   Hence, the former Director of Parks and Recreation’s defamation per se lawsuit failed – the Mayor was immune.  “[T]he controlling factor in deciding whether a public employee is absolutely immune from actions for defamation is whether the communication was within the scope of the officer’s duties.”  Quintero, supra (citation omitted).

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There are four elements to proving a negligence (tort) claim: (1) a duty of care; (2) breach of that duty; (3) proximate causation; and (4) damages.  Stated differently, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant’s breach proximately caused damages to the plaintiff.

Whether a duty of care exists is a question of law, meaning it is a question for the court.  Cascante v. 50 State Security Service, Inc., 45 Fla. L. Weekly D8a (Fla. 3d DCA 2019).  If there is no duty, there is no negligence claim.

In Cascante, the trial court entered summary judgment, affirmed by the appellate court, holding that the defendant did not owe a duty of care to the injured plaintiff.  In this case, defendant provided security guard services for Miami-Dade County.  The defendant bid on the security guard services pursuant to a public solicitation that required, among other things, the defendant to provide a security guard at a Metrorail parking lot.  The public solicitation, and corresponding contract, set the hours for the defendant’s services, the number of security guards, and the control the County had over the services.

The plaintiff was injured in the parking lot and sued the defendant in negligence – a negligent security claim. “[A]n action sounding in tort [negligence] will lie where a security agency contractually undertakes a duty to protect persons lawfully on defined premises and the agency fails to exercise reasonable care in performing its obligation.”  Cascante, supra.

However, the plaintiff was injured during a time where the defendant was contractually NOT required to provide a security guard (i.e., after-hours).  Further, per the County’s contract with the defendant, the County was responsible for determining the shift schedule for the security guards, the number of security guards, the level of training required for the security guards, and the ultimate decisions for security measures.   Therefore, as a matter of law, the Court held that the defendant owed NO duty to the plaintiff as the duty to protect persons such as the plaintiff after-hours resided solely with the County.  The defendant owed no duty beyond its contractual obligation.  If the defendant owed no duty of care to the plaintiff, the plaintiff’s negligence action failed.

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In an important opinion stemming from the tragically horrific and deplorable mass shooting at Stoneman Douglas High School in February 2018–an incident that eternally weighs heavily in hearts –the school resource officer assigned to the school was sued under negligence theories.  Peterson v. Pollack, 44 Fla. L. Weekly D2983b (Fla. 4^th DCA 2019). 

The school resource officer moved to dismiss the lawsuit under sovereign immunity (i.e., that he was statutorily immune from such a lawsuit), and specifically, protection afforded to him under Florida Statute s. 768.28(9)(a).  This subsection provides in pertinent part:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

The trial court denied the school resource officer’s motion to dismiss finding the officer was NOT immune as a matter of law and the officer appealed. 

The issue was whether the plaintiff pled allegations that would give rise to the exception to immunity: “…unless such officer…acted in bad faith or with malicious purpose or in any manner exhibiting wanton and willful disregard of human rights, safety, or property.”   The complaint appeared to be extremely detailed in this regard, meaning there were a number of detailed allegations, and the inferences from those allegations, to support the exception to sovereign immunity.

The court looked to see how “bad faith,” “malicious purpose,” and “wanton and willful disregard of human rights, safety, or property” were interpreted or treated by other cases under this sovereign immunity exception.

“Bad faith,” the court explained, has been equated to an actual malice standard.

“Malicious purpose,” the court explained, has been interpreted as conduct committed with spite, ill will, and hate.

“Wanton and willful disregard of human rights, safety, or property,” the court explained, has been interpreted as conduct worse than gross negligence and more reprehensible than intentional conduct.  However, this does not explain what this means in the context of the statute.  Thus, the court looked at other resources including standard jury instructions for crimes that use the term “wanton” and “willful.”   “Wanton” has been defined as a “conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.”  Peterson, supra (citation omitted).  “Willful” has been defined as “intentionally, knowingly, and purposefully.”  Id. (citation omitted).

In reviewing the allegations of the complaint and the inferences from the detailed allegations, the court affirmed the trial court, concluding that the “allegations regarding the deputy’s conduct, taken as true as we are required to do in this review, would be sufficient for a reasonable trier of fact to conclude that the deputy acted “in bad faith,” “with malicious purpose,” or “in a manner exhibiting wanton and willful disregard of human rights [or] safety,” as we have interpreted those phrases under Florida law. Thus, we affirm the circuit court’s denial of the deputy’s motion to dismiss the parents’ suit against him based on section 768.28(9)(a) immunity.” Peterson, supra. 

Hence, the school resource officer is not given sovereign immunity for decisions, or lack of decisions, he made — the lawsuit sufficiently pled allegations, and inferences from those allegations, to give rise to the exception to sovereign immunity.

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The use of escrow agreements and escrow agents is common.   They are used in relationship to purchase-sale or real estate contracts.  They are also used in relationship to certain settlement agreements.  The escrow agent may be a third-party, such as a title company or financial institution, or it may be a law firm representing a party in the transaction or case. 

An escrow agent owes a fiduciary duty to the parties to the escrow transaction or agreement.  Carter Development of Massachusetts, LLC v. Howard, 44 Fla. L. Weekly D2833a (Fla. 1^st DCA 2019).  “Any limitation on the use of money placed in an escrow pursuant to an agreement is governed solely by the terms of that agreement.”  Id. 

While an escrow agent owes a fiduciary duty to a party to the escrow agreement, how escrowed monies will be disbursed are governed by that agreement. 

In Carter Development of Massachusetts, parties entered into an agreement associated with the investment in a real estate project.  An investor was depositing $650,000 into the developer’s law firm’s trust account where the money was held by the law firm pursuant to the terms of an escrow agreement between the developer and the law firm.   Subsequently, the developer and law firm entered into an escrow agreement governing the disbursement of the escrowed proceeds.

The investment or project failed and the investor wanted money back arguing that the money should not have been disbursed to the developer.  However the money, or most of it, was gone as the law firm disbursed the money pursuant to the escrow agreement with the developer.  The investor sued the law firm for, among other claims, breach of fiduciary duty by the escrow agent.  However, the investor was NOT a party to the escrow agreement.  This meant that the law firm, as the escrow agent, owed no duty to the investor – there was no fiduciary duty owed to the investor.

The moral is that if the investor wanted control as to the disbursement of the escrowed proceeds, it should have made itself a party to the escrow agreement and negotiated those terms. The investor’s current deal did not give the investor that right as it was not a party to the escrow agreement between the law firm and the developer.

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A plaintiff may serve a proposal for settlement (a/k/a offer of judgment) to create a mechanism to recover attorney’s fees as the prevailing party.  When it comes to proposals for settlement served by the plaintiff on the defendant, Florida Statute s. 768.79 provides:

(b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.

For purposes of the determination required by paragraph (a), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.

Of interest is the underlined language talking about adding back “post offer settlement amounts” to the calculation.

For example, say the plaintiff sues multiple defendants.  It serves a proposal for settlement on a defendant and the defendant does not accept the proposal.  During the case, the plaintiff settles with the other defendant and proceeds to trial against the defendant that refused to accept the proposal.   The plaintiff’s net judgment would be reduced by the amount of the settlement BUT when it comes to determine whether the plaintiff should be entitled to its fees against the defendant it proceeded to trial against, this postoffer settlement is added back to the net judgment to see if plaintiff’s judgment is at least 25 percent more than the offer.

This was the situation in Wilcox v. Neville, 2019 WL 5584878 (Fla. 1^st DCA 2019).  In this car accident case, a plaintiff sued two defendants.  During the case, the plaintiff served a proposal for settlement on each defendant.  One of the defendants  accepted the proposal against him for $60,400.  The other defendant did not accept the plaintiff’s proposal and the case moved to trial.  At trial, the jury returned a verdict for $126,592.33.  The trial judge reduced this amount by the $60,400 settlement with the co-defendant and insurance benefits, to come up with a net judgment amount of $58,856.73.  The issue, for purposes of determining whether the plaintiff should be entitled to attorney’s fees pursuant to its proposal, was whether the $60,400 should be added back to the net judgment of $58,856.73 for purposes of the attorney’s fees calculation.   The appellate court held the trial court was required to add this back:

Thus, the clear and unambiguous language of section 768.79(6) requires the judgment obtained to include the amount of any settlement by a co-defendant after the date of service of the offer on the defendant by which the verdict was reduced.  Here, it is undisputed that [plaintiff] reached a $60,400 settlement with [co-defendant] after serving her offer on [other defendant] and the verdict was reduced by that amount.  Accordingly, the trial court was required to add the $60,400 settlement amount to the net judgment in calculating the judgment obtained and determining [plaintiff’s] entitlement to fees. 

Wilcox, 2019 WL at *4.

Hence, when it comes to the attorney’s fees calculation for purposes of proposal for settlements, keep in mind that postoffer settlements will be added back into the calculation, even if the verdict or judgment is reduced by virtue of this settlement.

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A settlement agreement is governed under the tenets of contract law – there needs to be a meeting of the minds for there to be a settlement.  Ideally, you want this meeting of the minds to be memorialized in writing in a settlement agreement.  However, what if it is not memorialized in a written settlement agreement?

As is true of contracts generally, a settlement agreement is formed “only when one party makes an offer and another party accepts it.”  An acceptance sufficient to create an enforceable agreement “must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer.”  This ensures that there is a “meeting of the minds” between the parties on all essential terms. “[W]here it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.”

Basner v. Bergdoll, 44 Fla.L.Weekly D2593a (Fla. 1^st DCA 2019) (internal citations omitted).

By way of example, in Basner, an automobile accident occurred. The accident was caused by a vehicle driven by the child of the owners.  The owners’ insurer sent a check to the plaintiffs and a release that required the plaintiffs to release the owners and their child.  The plaintiffs marked up the release because they did not want to release the owners’ child and signed the release, but held onto, and did not cash, the check.  The plaintiffs did not hear back from the insurer and ultimately returned the check and sued the owners and their child. 

The owners moved for summary judgment contenting there was a settlement agreement and they had been released.   The trial court agreed and enforced the release as to the owners.  The appellate court, however, reversed because there was NO meeting of the minds. The plaintiffs marked up the release and, thus, did not agree to the terms the insurer proposed in issuing the check, which was a release of the owners and the owners’ child.  Instead, the plaintiff’s made a counteroffer in marking up the release in agreeing to release only the owners.  When the plaintiffs did not hear back from the owners’ insurer, they returned the check ultimately terminating their counteroffer.  Hence, there was NO meeting of the minds.

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There is a doctrine known as the “relation back” doctrine that refers to amended complaints and the statute of limitations.  Assume an original complaint was filed within the applicable statute of limitations.  Assume after the statute of limitations expired, an amended complaint is asserted with new claims.  Do the new claims in the amended complaint RELATE BACK to the original complaint so that the new claims are deemed filed within the statute of limitations? 

The recent opinion in Mitchell v. Applebee’s Services, Inc., 44 Fla. L. Weekly D2443a (Fla. 1^st DCA 2019) explains Florida’s liberal policy in answering this question:

Whether an amended complaint relates back to the filing of the original complaint for statute of limitations purposes is a question of law subject to de novo review. Caduceus Props., LLC v. Graney, 137 So. 3d 987, 991 (Fla. 2014). As the Florida Supreme Court explained in Caduceus:

Generally, Florida has a judicial policy of freely permitting amendments to the pleadings so that cases may be resolved on the merits, as long as the amendments do not prejudice or disadvantage the opposing party. . . .

Permitting relation back in this context is also consistent with Florida case law holding that [Florida Rule of Civil Procedure] 1.190(c) is to be liberally construed and applied.

Id. at 991-92.

In other words, as long as the initial complaint gives the defendant fair notice of the general factual scenario or factual underpinning of the claim, amendments stating new legal theories can relate back . . . even where the legal theory of recovery has changed or where the original and amended claims require the assertion of different elements.

Mitchell, supra.

“The key inquiry to determine whether an amendment relates back or is barred by the statute of limitations is whether the party in question had notice of the litigation during the limitations period under the original pleadings and the amendment merely adjusts the status of an existing party, or the amendment actually introduces a new defendant.” Id. quoting HSBC Bank USA, Nat’l Ass’n v. Karzen, 157 So.3d 1089, 1091-92 (Fla. 1st DCA 2015).

When it comes to amended complaints filed after the expiration of the statute of limitations, it is one thing if you are amending a complaint to assert a claim against a new party.  It is another if you are amending a complaint to add claims against existing defendants based on the same transactions and occurrences as the original complaint.

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Does an uneven floor level, in of itself, support a premise liability claim?  No!  Uneven floor levels are not so uncommon. 

The case of Contardi v. Fun Town, LLC, dealt with this issue in the context of an uneven floor at a skating rink – the difference between the skating rink floor and building’s subfloor.  A person was injured when exiting the skating rink to the building’s subfloor and, consequently, filed a premise liability lawsuit.   The owner of the skating rink was granted summary judgment and the summary judgment was affirmed on appeal finding that a premise liability claim did not exist as a matter of law.  The appellate court affirmed the summary judgment with an informative discussion as to premise liability claims, particularly in the context of uneven floors:

An owner/occupier of land owes an invitee two duties: (1) to use ordinary care in keeping the premises in a reasonably safe condition; and (2) to give timely warning of latent or concealed perils that are known or should be known by the owner or occupier but that are not known to the invitee or that by the exercise of due care, could not have been known by the invitee.  However, there is no duty to warn an invitee of an obvious danger. This duty does not change from a residential to a commercial context. 

Uneven floor levels in public places, by themselves, do not constitute latent, hidden, and dangerous conditions.  Dim lighting does not transform an otherwise-obvious change in floor elevation into a latent danger.  According to her own deposition testimony, [the plaintiff] had earlier that visit successfully exited the skating rink onto the floor under the same lighting conditions that were present when she fell. Because the uneven floor levels, even in dim lighting, constituted an open and obvious danger, Fun Town [owner of skating rink] had no duty to warn B.C. of the difference in the levels between the rink and the rest of the building floor.

Lastly, while an obvious danger may discharge a landowner’s duty to warn, Fun Town still had a separate duty to maintain the premises in a reasonably safe condition. [The plaintiff] did not allege, argue, or present evidence in opposition to Fun Town’s summary judgment motion that the condition of the lip or step where B.C. fell was improperly maintained, in disrepair, or negligently designed. Accordingly, we conclude that the trial court properly entered summary judgment in favor of Fun Town.

Contardi, supra (internal citations omitted).

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