PHYSICIAN-PATIENT
CONFIDENTIALITY
Hasan v. Garvar, ---
So. 3d --- (Fla. December 20, 2012)
held that Fla. Stat. § 456.057
prohibits ex parte private pre-deposition between an attorney hired by an
insurance company to represent a dentist who rendered treatment to plaintiff after
the alleged malpractice was committed by another dentist, where the same
insurance company insured both dentists.
Polston and Canady dissented.
ARBITRATION
Spring Lake NC, LLC v.
Figueroa, 2012 Fla. App. LEXIS 21521 (Fla. 2d DCA Dec. 14, 2012) is
another example of the judicial hostility to arbitration that led to the
enactment of the Federal Arbitration Act (FAA) in 1925. The plaintiff in a personal injury case was
contesting a motion to compel arbitration arguing that the phrase “nationally
recognized arbitration association” was ambiguous. Ultimately, the circuit
court found the phrase was unambiguous. The court nevertheless denied the
motion. The circuit court was found to
have erred in multiple ways in denying the motion to compel arbitration.
First, the court should have
concluded the hearing when it determined that the phrase “nationally recognized
arbitration association” was not ambiguous, a conclusion with which it agreed.
Second, even if the court could have found ambiguity in that phrase, the
evidence submitted was insufficient to establish multiple, reasonable
interpretations of the phrase. The third, which was the trial court’s reason
for denying the motion to compel, was an impossibility argument—that that the
only nationally recognized arbitration associations would not take this type of
case. This was ostensibly based on
counsel’s personal knowledge, which did not qualify as evidence. It also failed because the purpose for which
the agreement was drafted—arbitration—was not rendered impossible given the
FAA’s provision in 9 U.S.C.A. §5 that the court may appoint arbitrators.
ARBITRATOR
OR JUDGE
Steuer
v. Jaylene Inc., 2012 Fla. LEXIS 2590 (Fla. December 20, 2012) represents
another case where the Florida Supreme Court is proceeding on a different track
that the U.S. Supreme Court by quashing a decision stating that the arbitrator
(as opposed to the trial court) initially must determine whether an arbitration
agreement’s limitation on statutory remedies renders the agreement
unenforceable on public policy grounds.
PARTIES / SUBSTITUTION / WRONGFUL DEATH ACT
Smith v. R.J. Reynolds
Tobacco Co., 2012 Fla. App. LEXIS 21520 (Fla. 2d DCA Dec. 14, 2012) a
divided court held in this Engle case that when the plaintiff died, the
court must grant the personal representative’s motion for substitution of
parties and amendment of the complaint.
See Ramirez, 1-10
Florida Civil Procedure § 10-8, n.338. The
court certified conflict with Capone v. Philip Morris U.S.A. Inc., 56
So. 3d 34 (Fla. 3d DCA 2010), rev. granted, 75 So. 3d 1243 (Fla. 2011), and Ruble
v. Rinker Material Corp., 59 So. 3d 137 (Fla. 3d DCA 2011), rev. granted,
75 So. 3d 1245 (Fla. 2011) .
NEW PANEL – NEW RESULT
Clark
v. Bluewater Key Rv Ownership Park, 2012 Fla. App. LEXIS 21719 (Fla. 3d DCA Dec.
19, 2012) granted rehearing and reversed a previously well-written and well-reasoned
opinion reported at: Clark
v. Bluewater Key RV Ownership Park, 2012 Fla. App. LEXIS 5482 (Fla. 3d DCA Apr.
11, 2012). The dissenter wrote the
majority opinion, which simply
adopted “the opinion of the trial court, upon which we cannot improve and therefore
adopt en [sic] haec verba.” To save you
a trip to the dictionary, “in haec
verba” is Latin for “in these words,” and refers to incorporating verbatim text into some other
legal document. To which I say: “non necessario recte sed ultimus.”
SETTLEMENT
Otaola
v. Cusano's Italian Bakery, 2012 Fla. App. LEXIS 21714, 1-2 (Fla. 3d DCA Dec.
19, 2012) reversed a dismissal with prejudice a widow’s wrongful death
lawsuit against defendant based on a pre-suit settlement and payment of policy
limits ($1,000,000.00) by one of defendant’s insurers (Allstate Insurance, a
non-party) without a release of defendant or its excess coverage insurer (AIG,
also a non-party). Defendant argued that
either the settlement should be rescinded as an incomplete settlement (and all
funds disgorged) or, alternatively, it should be enforced as if the wrongful
death lawsuit was completely settled. The court concluded that defendant was not entitled
to such relief and remanded the case so that the wrongful death lawsuit could be
prosecuted to its conclusion (though giving full effect to the substantial
recovery realized by plaintiff through Allstate’s tender and payment of its
coverage limits).
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