THE LATEST EXPANSIONS OF LIABILITY BY THE FLORIDA SUPREME COURT
As detailed in this report last year, the Florida Supreme Court preserved a plaintiff-friendly test for product liability claims that most other courts have abandoned, imposed liability on a landlord for an unsolved double murder, and allowed plaintiffs in personal injury cases to recover damages for future medical costs that would be picked up by taxpayers through Medicare. Its decisions are just as bad or worse in 2016.
Workers’ Compensation Havoc. Two recent Florida Supreme Court decisions are causing workers’ compensation insurance rates to skyrocket in Florida, with small businesses and other employers facing a nearly 20% rate hike. Some experts predict that rates could ultimately soar as much as 35%.
Plaintiffs’ lawyers who file low-dollar workers’ compensation claims can now receive lucrative fees, thanks to the high court’s April 2016 ruling in Castellanos v. Next Door Co. There the court threw out a sliding scale for attorney’s fees that the Florida Legislature established in 2009 in pursuit of consistency. The court found that the fee schedule unconstitutionally denied an attorney a “reasonable” fee when the lawyer sought $36,818 in fees for spending 170 hours of time to chase $828 in benefits. As Justice Charles Canady noted in his dissent, the lawyer’s fee was nearly 45 times the amount of the client’s recovery. While the court could have limited its ruling to the particular case before the court, it issued a far-reaching decision that nullified the fee schedule. Legal observers predict the decision will result in higher fee awards and an increase in workers’ compensation claims.
Later in June, the high court doubled down in Westphal v. City of St. Petersburg, invalidating a state law that reasonably limited “temporary” disability benefits to two years and instead revived a prior law allowing such workers’ compensation payments to continue for up to five years. The two-year period is designed to compensate workers while they heal and return to work or become eligible for permanent benefits. In the case before the court there was a coverage gap – the time to recover temporary benefits for an injured firefighter had expired, but a workers’ compensation judge found the plaintiff did not yet qualify for permanent benefits because his condition might improve.
The court could have found that the law, as written, did not permit benefits, which likely would have prompted legislative action. Alternatively, the majority could have found, as the dissenters believed and an intermediate appellate court ruled, that there actually was no coverage gap because the firefighter qualified for permanent benefits. But again the majority instead chose to rewrite the law.
Is any wonder that workers’ compensation costs are projected to rise dramatically when a temporary injury can result in five years of payments and attorneys can receive huge fees in small disputes? And in such an environment, can anyone be surprised that a plaintiffs’ lawyer, presumably with his eye on a new yacht or vacation home, had the nerve to file a lawsuit seeking to prevent the State Office of Insurance Regulation from conducting a public hearing into these rising costs?
Call 911!… Then Pay $3.3 Million. Incredibly, Florida’s Supreme Court ruled in June 2016 that a bank faces liability after a teller, mistakenly believing that a customer fit the description of a suspected robber depicted in an e-mail disseminated that morning, triggered a silent alarm.
Although the teller made an honest error, the court found that Bank of America could be held responsible for injuries resulting from the police response. A Miami-Dade County trial court awarded the plaintiff $2.6 million in compensatory damages, primarily for pain and suffering, plus an additional $700,000 in punitive damages. A mid-level appellate court rationally threw out the preposterous award, applying the longstanding rule that a person who contacts law enforcement in good faith to report criminal activity cannot be liable for negligence.
But the usual 5-2 majority on the high court reversed that appellate decision and sent the case back for a new trial. The court ruled in Valladares v. Bank of America that a person or business is subject for liability when making an erroneous police report not only if done maliciously, as is the traditional approach, but also if the report is made recklessly. Apparently, “if you see something, say something” has been replaced in Florida with “think twice, and maybe three times, before calling police for help.”
More Liability for the State. Private-sector businesses, such as banks, aren’t the only ones affected by the Florida Supreme Court’s liability-expanding rulings. The state and its taxpayers also are on the hook. In Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, the high court ruled that when a state agency incorrectly denies a person’s request for access to public records, his or her attorney is entitled to recover attorney’s fees even when the agency acted in good faith. In this case, the board of trustees managing Jacksonville police and fire pension funds incorrectly told a person who requested access to documents that he would have to pay for the time of an employee to monitor him as he read through public records in the office.
As a result, the board may have to pay $75,000 to the requestor’s lawyer, in addition to its own legal expenses. As the dissenting justices observed, the court’s 5-2 majority rewrote the statute, which requires an agency’s custodian of records to respond to request for public records “in good faith” and allows an award of attorney’s fees only when the agency “unlawfully refused” a request. Legal observers note that the court’s ruling leaves no room for error, imposing a form of strict liability in a “costly precedent” for state agencies.
Fee Challenges Made More Onerous. What happens if a defendant complains that a plaintiff’s attorney fee request is excessive? In March 2016 Florida’s high court answered that question in the context of allegations that an insurer improperly failed to pay such a request in full. Its 4-3 decision in Paton v. Geico General Insurance Co. ruled that if a defendant contests the attorney’s fee sought, the insurer must produce its own attorneys’ time records, invoices, and retainer agreement as evidence.
The insurer argued that its attorneys’ work on the case was both privileged and irrelevant to the disputed fee. Observers note that the decision “marks a dramatic change in the discoverability of billing records.” Florida courts had rarely required an opponent to disclose such information. Now, plaintiffs’ attorneys will have more leverage when seeking fees, as they can require defendants to gather and release sensitive information regarding legal representation.
Arbitration Agreements Unenforceable. Nursing home residents can no longer be bound to arbitration by an agreement entered into by a family member on their behalf, ruled the Florida Supreme Court said in September 2016. In a case out of Miami-Dade County, the high court found that such an agreement could not prevent a resident’s son from bringing a lawsuit on behalf of his father who’d contracted an eye infection, even though it was the same son who signed, and fully understood, the contract he entered! By sending timely and efficient arbitration off to die, the court’s ruling in Mendez v. Hampton Nursing Center, LLC will invariably lead to more costly lawsuits and still higher prices for nursing home care in South Florida and elsewhere throughout this steadily aging state.
More Fuel for Tobacco Lawsuits. Florida’s storied tobacco litigation shows no signs of burning down after 2016’s back-to-back Florida Supreme Court rulings expanding liability. Since the state high court lowered evidentiary requirements in tobacco lawsuits a decade ago in Engle v. Liggett, state courts have been working their way through thousands of trials. In March 2016, the Florida Supreme Court made it easier to recover punitive damage awards. Then it lowered the bar for individuals to be included in the class that is entitled to special advantages when suing tobacco companies.