Validity of Joint Proposal for Settlement in Florida: Analysis of SDG Dadeland Associates, Inc. v. Arias

The Third District Court of Appeal for Florida in SDG Dadeland Associates, Inc., v. Keyna Arias, reversed the Circuit Court of the Eleventh Circuit's denial of Defendant's motion for attorney's fees based on a joint proposal for settlement under section 768.89 of the Florida Statutes. The Third District Court held that the Joint Proposal for Settlement was valid as it accurately reflected the joint offer and allocation of payments, despite the indemnified offeror not monetarily contributing to the joint Proposal.

The Plaintiff, Kenya Arias, slipped and fell in a mall operated by Defendant, Dadeland Associates, Inc. (“Dadeland”), and maintained by Co-Defendant, Nationwide Janitorial Services, Inc. (“Nationwide”) (collectively “Defendants”). Nationwide’s service contract with Dadeland contained an indemnification provision agreeing to defend, indemnify, and hold Dadeland harmless from third-party claims resulting from Nationwide’s Janitorial services. Defendants filed a Joint Proposal for Settlement. The Joint Proposal for Settlement noted that Nationwide would contribute $5,000, while Dadeland would contribute $0.00. The Proposal for Settlement was rejected by the Plaintiff.

After a jury trial resulted in a verdict in favor of the Defendants, they moved for attorney's fees under section 768.79. The trial court denied the motion, finding that the Proposal for Settlement was invalid due to its ambiguity, particularly, Dadeland’s failure to contribute to the offer. On appeal, the Plaintiff argued that Dadeland's status as a defendant would be in question as per the terms of the Proposal for Settlement. However, the Third District Court of Appeals found this argument meritless, stating that the Proposal clearly conditioned acceptance by requiring a dismissal as to all defendants.

Secondarily, Plaintiff argued that the Joint Proposal was ambiguous as it was an illusory offer with no consideration from Dadeland. The Third District Court rejected this argument, noting out that Florida Rule of Civil Procedure 1.442 expressly allows co-defendants to make joint settlement proposals as long as the proposal states the amount and terms attributable to each party. The Court ruled that the Proposal was compliant with Florida rules and that the allocation of payments was sensible considering the indemnity agreement between the parties.

The Third DCA concluded that indemnified parties do not have to waive their entitlement to indemnification to avail themselves of the substantive rights provided under 768.79.

New York’s “Grieving Families Act” Vetoed for a Second Time

As many are aware, the current wrongful death law in New York states that if a loved one is killed in an accident, the family can only recover for the conscious pain and suffering that their loved one endured before their death, which must be proven. Furthermore, they can also recover for the economic loss to the family, but in the case of a child, elderly parent, or unemployed adult, there would be no recovery for the emotional loss and grief of the loss of their loved one. The statute of limitations for wrongful death in New York is two years from the death of a loved one.

The Grieving Families Act was a bill introduced in the New York State Senate in January 2021 to expand the types of damages that may be awarded to the persons for whose benefit an action for wrongful death is brought. This bill allowed loved ones to sue for emotional loss, including grief, anguish, and loss of companionship, in addition to the deceased person’s potential future income. The bill was also to extend the statute of limitations for such lawsuits and applied to all cases pending at the time it became law.

Governor Kathy Hochul first vetoed the bill in January 2023, reasoning that it was overbroad with potential to spike insurance premiums. She stated that the bill was passed without a serious evaluation of the impact of the massive changes it would make to the economy, small businesses, individuals, and the State’s complex healthcare system. Governor Hochul also mentioned that the Legislature declined the counterproposal she presented allowing parents to seek damages in the wrongful deaths of their children under 18.

The Grieving Families Act was then reintroduced in May 2023 with changes to the time to bring a wrongful death action to only three years after a close family member’s death. This meant that it would only apply to causes of action that arose on or after July 1, 2018. It narrowed the definition of who was eligible to recover damages and limited eligibility to those that have a legal relationship with the decedent, including spouses, domestic partners, children, parents, grandparents, siblings, stepchildren, stepsiblings, and individuals who stood in loco parentis to the deceased. However, even with these revisions, business groups opposed the legislation, arguing that the changing law would place new financial burdens on small businesses and increase healthcare premiums.

On December 29, 2023, Governor Hochul vetoed the Grieving Families Act for a second time, stating that the Legislature had again passed a bill that did not create the required balance and again introduced the potential for significant consequences. The Governor had concerns that the legislation would result in increased insurance premiums for most people and risk the financial well-being of health care facilities in the state.

At this time then, the Legislature’s response could be to either reach a compromise with the governor or potentially override the veto, requiring a two-third majority of lawmakers in each House to approve.

Callahan & Fusco will of course continue to monitor the status of the Act and any corresponding court decisions on this issue as they develop.

Pennsylvania’s High Standards for Punitive Damages Results in Dismissal Of Interdependent Claims of Punitive Damages and Direct Liability Against Trucking Company

In the case of Villagran v. Freightbull, Inc., No. 22-CV-2159 (E.D. Pa. Oct. 12, 2023 McHugh, J.), the United States District Court for the Eastern District of Pennsylvania granted Defendant trucking company’s motion for summary judgment to dismiss punitive damages claims and the claims of direct liability relative to allegations of negligent hiring and supervision. Previously in Guy v. Eliwa, No. 4:23-CV-00472 (M.D. Pa. Sept. 11, 2023 Brann, C.J.), a Middle District of Pennsylvania case held that Plaintiff’s recklessness and punitive damages are enough to survive a Motion to Dismiss.  The decision in Villagran affords defendants another opportunity to dismiss punitive damages with the help of relevant evidence.

The Court found that Plaintiff did not present any evidence to satisfy Pennsylvania’s high standards for punitive damages despite the matter arising from a fatal trucking accident. Defendant trucking company conceded that the truck driver was acting within the scope of his employment at the time of the accident and stipulated its vicarious liability for the actions of the driver.

Pennsylvania is a fact-pleading state and that, therefore, in order to proceed on a punitive damages claims, a plaintiff must aver that a defendant’s conduct was outrageous or was intentional, willful, wanton, or reckless. The Court reiterated the settled law that an entitlement to punitive damages requires that conduct go beyond gross negligence. The law also required that the defendant have a subjective appreciation for the relevant risk.

The Court noted, the defendant truck driver’s misjudgment of the proximity and speed of Plaintiff’s vehicle was not beyond gross negligence. As for the punitive damages claim against the trucking company, Plaintiff argued Defendant safety director’s lack of qualifications, the safety director’s familial relationship to the company, combined with the trucking company’s failure to provide training in trip planning amounted to conduct rising to the punitive damages standard.   The Court stated that any conduct supporting a claim for punitive damages must have a direct role in causing Plaintiff’s injuries. The Safety Director’s qualifications/familial relationship to the company and the company’s lack of trip planning training is not factually relevant to support a claim for punitive damages.

A dashcam video of the accident depicts defendant’s tractor trailer pulling out into the highway at nighttime, stopping for a moment, and turning on its left signal light before crossing to lanes of traffic to make a left turn. Before the tractor trailer completed the turn, Plaintiff’s vehicle crashed into the side of the trailer close to the rear. Plaintiff’s argument of Defendant Trucking Company’s failure to train the driver was irrelevant since trip planning had nothing to do with the accident. The dashcam video ultimately revealed no basis for punitive damages.

The Pennsylvania Supreme Court has not yet addressed the issue.  In the absence of a controlling decision from the Pennsylvania Supreme Court, federal district courts in Pennsylvania seem to have dismissed claims for negligent supervision, hiring, retention, and entrustment when the defendant-employer admits that the defendant-employee was acting within the scope of employment and there is no viable claim for punitive damages.

Callahan & Fusco Ends 2023 with Dismissals for Both Landlord and Tenant

Callahan & Fusco was recently granted summary judgment on behalf of two clients, a landlord and a tenant, with the New York Supreme Court, Bronx County granting two separate motions for summary judgment and dismissing the plaintiff’s action against each of them on different grounds. See Juan Henriquez Vasquez v. Mosholu Petrol Realty LLC, et al.

Plaintiff’s Complaint arose from an alleged trip-and-fall accident on the sidewalk abutting the client landlord’s property, which consisted of a gas station and commercial building on the premises, leased to two separate tenants. While the client tenant leased a portion of the interior of the building to operate a Dunkin’ Donuts franchise, the majority of the property, including the exterior, was leased to the co-defendant to operate a gas station and minimart on the premises. Notably, this contract with the co-defendant gas station was a “triple net lease,” wherein that tenant was responsible for paying not only rent, but also all expenses related to insurance, maintenance, and taxes, and the landlord not retaining any right of reentry. Following plaintiff’s alleged trip-and-fall, he commenced this personal injury action against the landlord and both tenants.

After the exchange of written discovery, C&F filed two motions for summary judgment to dismiss the Complaint: the first to dismiss the defendant landlord as an out-of-possession landlord under New York law, and the second to dismiss the defendant tenant based on the interior nature of their leased portion of the property.  In support of these motions, the defendants submitted their respective lease agreements and heavily emphasized for the Court the language contained within, detailing the obligations of each party on the involved premises.  It was also crucial to wait for plaintiff’s initial discovery responses, which included photographs of the specific area where the plaintiff allegedly fell, negating any arguments with respect to prematurity, as there could be no dispute as to the specific area in question once the photographs were disclosed.

Despite plaintiff’s various opposing arguments, the Court agreed with the defendants and granted both motions on the grounds that neither client had any responsibility for the area where the plaintiff allegedly fell.  In the lengthy Decision and Order, the Court referenced the triple net lease with the co-defendant tenant, and held that the lease required the co-defendant’s responsibility for the sidewalks, curbs, drives and pathways on the property and all paved areas. The Court further referenced the defendant tenant’s lease, specifically a clause providing that the lease is exclusively for use of the building and for no other purpose.  While plaintiff argued that the motions were premature ahead of party depositions, the Court found that the plaintiff failed to demonstrate that further discovery might lead to relevant evidence or facts essential to justify opposition, as the mere hope that such evidence may be uncovered during discovery is insufficient. Ultimately, the Court held that the moving defendants established, prima facie, that they had no duties or responsibilities with respect to the sidewalk upon which plaintiff allegedly fell, as the lease was unambiguous in its terms, and plaintiff’s counsel could not dispute it.

From a defense perspective, these motions demonstrate the importance of carefully reviewing extensive lease agreements in order to seize the opportunities presented within them. While indemnification terms were also present in the involved agreements, tender demands went unanswered, and it was thus decided to test the strength of these leases before the Court.  In future cases of a similar nature, it may thus be recommendable to attempt an early motion for summary judgment like this, in lieu of the further delays and expenses that come along with party depositions or other unnecessary discovery.

C&F Obtains a Series of Favorable Rulings Based Upon Staged Accident

Callahan & Fusco recently obtained summary judgment in a Kings County, New York matter. Defendants’ dash camera footage of the accident revealed that the alleged loss was a product of a staged accident.  Defendants filed a Motion to Dismiss and argued that the four Plaintiffs had failed to state a cause of action, as the underlying automobile accident was staged.  Ultimately the Kings County Court dismissed Plaintiffs’ claims.

Plaintiffs were driving on Conduit Avenue a few days before Christmas when they abruptly and without warning braked in front of a commercial vehicle. Our investigation revealed: (1) the loss in question occurred approximately a month after the Plaintiffs had purchased the first-party insurance policy in question; (2) Plaintiffs’ “burner car” involved in the accident was also purchased within the same time period for nominal consideration; (3)  the accident dynamics met multiple National Insurance Crime Bureau (“NICB”) screening criteria for an intentional and collusive accident; (4) video footage of the accident revealed Plaintiffs’ vehicle suddenly stop without warning or any reason for doing so in the middle of a dark road; (5) Plaintiffs’ vehicle “shadowed” Defendants’ truck prior to the impact; and (6) immediately following the incident, a third vehicle arrives and the driver exits the vehicle to take photos and videos of the collision scene.  After the accident, the four Plaintiffs began to treat excessively received physical therapy, chiropractic, acupuncture, diagnostic testing, therapy and durable medical equipment.  The four Plaintiffs all attended the same no-fault clinic and retained the same attorney.

Plaintiffs’ First-Party Insurance Carrier also opened an investigation and ultimately filed suit seeking a declaratory judgment that it has no duty to pay for “damages” related to a staged accident.  New York Courts routinely hold that an auto accident, which is the product of a staged or cause of event, is not a covered loss under the applicable policy of insurance.  (See Allstate v. Massre, 14 AD3d 610 [2d Dept. 2005]).  Further, intentional crashes are not “accidents” covered by insurance policies.  (See State Farm Mut. Auto. Ins. Co. v. Laguerre, 305 AD2d 490, 491 [2d Dept. 2003]). 

In this case, Defendants argued that the events leading up to the alleged incident did not constitute an accident and were the product of an intentional incident which were perpetrated solely for the purpose of obtaining insurance proceeds.  Further Defendants argued that the video footage revealed Plaintiffs’ vehicle shadowed Defendants’ truck.  The footage subsequently showed Plaintiffs’ vehicle intentionally coming to a sudden and complete stop and caused a collision with Defendants’ truck.

The Court ultimately granted the Motion for Summary Judgment in full against the Plaintiffs and dismissed all claims against the Defendants.  The Court held that res judicata and the issues decided in the Plaintiffs’ First-Party Insurance Carrier case were conclusive as to any matters actually litigated or that might have been litigated in that action, and precluded the Plaintiffs from maintaining a bodily injury action.  This matter exemplifies the importance of coordination between and among insurance carriers and a quick “emergency response” to potentially fraudulent and staged accidents.

The Legal Landscape of Premises Liability: Florida Appellate Court Affirms Summary Judgment in Trip and Fall Case Involving Concealed Hazard in a Commercial Property’s Landscaped Area

The Second District Court of Appeal of Florida recently decided the case of Stephanie Pio v. Simon Capital GP, Macy’s Florida Stores, LLC, and Luke’s Landscaping, Inc., No. 2D21-1621 (2nd DCA July 7, 2023), in which it affirmed the trial court’s granting of summary judgment in favor of the Defendants in an action that arose from a trip and fall accident within a landscaped area.

Plaintiff, Stephanie Pio, appealed the court’s final summary judgment order entered in favor of Simon Capital GP, one of the defendants in the case.  The incident occurred at Tyrone Square Mall in St. Petersburg, Florida.  Pio alleged that she sustained an injury after stepping into a concealed hole when she attempted to walk across a landscaped area outside the shopping mall.  Pio filed a complaint against Macy's Stores, Simon Capital, and Luke's Landscaping, which was contracted to conduct the mall's landscaping.

The trial court granted separate summary judgments for all three defendants, prompting Pio to appeal the decision concerning Simon, as the party in control of the subject premises.  The central question revolved around whether the landscaped area in which Pio tripped and fell could be classified as open and obvious.  The trial court's rationale was grounded in prior case law where landscaping features were generally considered non-dangerous or open and obvious conditions as a matter of law.   The court distinguished Pio's case from other precedent that was favorable to the plaintiff by noting that there was no evidence demonstrating that the area where Pio tripped and fell was regularly traversed by pedestrians.

Pio's appeal rested on two primary contentions.  First, she argued that the depression in the grass constituted a foreseeable hazard.  Second, she maintained that Simon should be held vicariously liable for the actions of Luke's Landscaping, which she alleged created the hazard or failed to remove it.  The Second District determined that Pio's presented evidence failed to substantiate her claim that a pedestrian walking through the landscaping and encountering a depression in the grass was foreseeable, as paved walkways were provided for pedestrian use.  Moreover, since Luke's was not found liable, the notion of vicarious liability for Simon was untenable. 

The Second District cited a prior case, Wolf v. Sam's East, Inc., 132 So. 3d 305 (Fla. 4th DCA 2014), which involved a similar set of facts.  In Wolf, the court ruled that the presence of tree roots in a landscaping area, though visible, were not inherently dangerous and thus constituted a non-dangerous condition as a matter of law.  The court reinforced its judgment by highlighting the fact that the property owner had provided paved walkways for pedestrian traffic, making a safer pedestrian route than through the landscaped area, and held that the plainitff had a responsibility to exercise caution in the presence of potential hazards.

Pio further underscores the established principle in Florida premises liability law that a property owner’s responsibility of maintaining its premises in a safe condition and warning of concealed hazards does not extend to areas that are not intended for pedestrian traffic.  Where a pedestrian chooses to take a detour through such an area, she does so at her own peril.