N.J. Supreme Court Expands Scope and Permits Greater Disclosure Under OPRA

In Bozzi v. City of Jersey City, the New Jersey Supreme Court held that citizens of the State of New Jersey do not have a reasonable expectation of privacy concerning dog ownership, as owning a dog is a “substantially public endeavor.” 2021 N.J. LEXIS 885, at *9 (Sep. 20, 2021). The underlying facts of the case involved a Plaintiff/licensed home improvement contractor who sought copies of dog license records from Jersey City pursuant to the common law right of access and the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Specifically, Plaintiff requested the dog owners’ names and addresses to advertise his invisible fence installation services. Bozzi, N.J. LEXIS 885, at *9.

The Plaintiff’s request raised privacy concerns, with the city arguing against disclosure, highlighting inherent concerns such as (1) residents not listed as dog owners might be perceived as more vulnerable to burglary, (2) the revelation of the addresses of those targeted by stalking/threats, and (3) knowing dog-owners’ addresses might encourage would-be burglars to bring a weapon. Id. at 11.  Nevertheless, after analyzing OPRA, the Court sided with the Plaintiff.

The Court focused on the fact that OPRA contains twenty-three enumerated exceptions from disclosure, which include the names and addresses of those on record as having a license to hunt with a firearm. Id. at 17. Absent from these specifically enumerated exceptions was dog ownership, or according to the Court, any apparent overarching legislative intent directed at the nondisclosure of names or home addresses. Id. at 18. Moreover, the Court explained that even where information is not listed in the enumerated exceptions, its disclosure can still be prevented per OPRA’s privacy clause. Id. at 19. This clause focuses on a person’s, “objectively reasonable expectation of privacy,” with this expectation determined primarily by a focus on information typically kept private versus information extended to the public. Id.

However, the Court viewed the situation in Bozzi as failing to trigger the protection of the privacy clause. Relying on past precedent as set forth in Brennan v. Bergen Cty. Prosecutor's Office, 233 N.J. 330 (2018), the Court found that there is no uniform prohibition on the disclosure of names and addresses, so their analytical focus must be targeted at, “the ownership and licensing of a dog.” The Court was not persuaded that dog ownership and licensure warranted the protection of the privacy clause, describing dog ownership as an “inherently public endeavor.” Id. at 21. Specifically, the Court described dog owners as being, “regularly exposed to the public during daily walks, grooming sessions, and veterinarian visits.” Id. The Court also highlighted the fact that many dog owners share their pet on social media and through other public platforms. Id. at 21.

Though, the Court did limit the disclosure, finding that sharing information as to dog breed or purpose must be kept confidential for the health and safety of the public. Id. at 22. The Court rationalized that certain high-value dog breeds might attract unwanted attention and that a dog’s purpose such as for service or law enforcement should also remain private. Nevertheless, the effect of the Court’s ruling remains the same. If you are a licensed dog owner in New Jersey, your name and address can now be disclosed under OPRA.

Florida Extends the “Apex Doctrine,” Providing New Protections from Discovery Abuses for High-Level Corporate Officers

The Florida Supreme Court, in a six to one decision, ruled that the “Apex Doctrine,” which historically only applied only to high-level government officers, will now also apply to high-level business officers.

Traditionally, the apex doctrine was framed to balance the competing goals of limiting potential discovery abuse and ensuring litigants’ access to necessary information. Properly applied, the doctrine “will prevent undue harassment and oppression of high-level [government] officials while still providing a [party] with several less-intrusive mechanisms to obtain the necessary discovery, and allowing for the possibility of conducting the high-level deposition if warranted.”  

The Court’s August 26, 2021 decision to codify the apex doctrine arose from a certiorari appeal from a split decision by the First District Court of Appeal in Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019).  Winckler raised the question of whether the apex doctrine should be applied to governmental agencies, but not corporations.  The Court dismissed Winckler and addressed the issues with a rules opinion, amending Florida Rule of Civil Procedure 1.280(h) and incorporating the Apex Doctrine into it. 

Suzuki Motor Corp. v. Winckler was a product liability case in which the plaintiff sued the Suzuki Motor Corp. alleging that the brakes failed on his GSX-R series Suzuki motorcycle while he was riding it, resulting in a crash that left the plaintiff paralyzed from the waist down.  In the course of discovery, the plaintiff sought a letter rogatory from the trial court seeking to take the examination of Mr. Osamu Suzuki, the Chairman of the Board of Suzuki Motor Corporation, in Japan.  The plaintiff claimed that Mr. Suzuki “possesses unique knowledge about specific facts relevant to [the] allegations,” citing the Chairman's involvement with a document addressing the brake issue and a related email, and the trial court ultimately allowed the deposition.  A split decision in the First District Court of Appeal resulted in the case going to the Florida Supreme Court on certiorari review.

In its recent rules opinion, the Florida Supreme Court stated: “We believe that it is in Florida’s best interests to codify the apex doctrine in our rules of civil procedure and to apply the doctrine to both private and government officers. Making this change as a rule amendment allows us to ensure consistency across the two contexts and to define and explain the apex doctrine as clearly as possible.”

New Florida Rule of Civil Procedure 1.280(h) reads: “Apex Doctrine.  A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition.”

This rule change will surely play a critical role in the future of discovery, as the focus will now be on determining who exactly is “high-level” and what exactly is “unique, personal knowledge.”  While the Civil Procedure Rules Committee continues to review the ruling in consideration of offering a comment on the rule amendment, it seems that Florida has entered into a new era of protections for corporations and their officers. 

Exit Strategies to Consider in Homeowners Insurance Cases

Two new cases were published on August 18, 2021, granting summary judgment for insurers, which identify a few paths toward a viable summary judgment argument.  In Nembhard v. Universal Property and Casualty Insurance Co., the Third DCA granted summary judgment based on misrepresentations or omissions made by the homeowners when applying for insurance with UPCI. Nembhard v. Universal Property and Casualty Insurance Co., 46 Fla. L. Weekly D1869b (Fla. 3d DCA 2021).  The Court held, an insurance company has the right to rely on an applicant’s representations in an application for insurance and is under no duty to inquire further unless it has actual or constructive knowledge that such representations are incorrect or untrue. Id.  This holding applies to instances when the homeowner makes a non-intentional misstatement in an application. Id.  The insurer does not need to establish the misrepresentation was intentional. Id.  Additionally, the Court held, an insurer has the right to unilaterally rescind an insurance policy on the basis of misrepresentation in the application for insurance. Id. 

Nembhard identifies that consideration should be given to pursuing early summary judgment if it can be shown that the homeowners made misrepresentations during the application process.  If this misrepresentation affected the insurer’s risk or would have led to non-issuance of the policy, then the misrepresentation is likely material.  Making a showing of detrimental reliance by the insurer should lead to a favorable outcome on a Motion for Summary Judgment.

In Certified Priority Restoration v. Universal Insurance Company of North America, summary judgment was granted based on the insurer paying the maximum due under the policy.  Certified Priority Restoration v. Universal Insurance Company of North America, 26 Fla. L. Weekly D1865a (Fla. 4th DCA 2021).  In Certified Priority Restoration, the homeowners had water damage repairs completed by Certified Priority Restoration.  The homeowners assigned the right to recover insurance benefits under the homeowner’s policy to CPR.   The insurer moved for summary judgment based on its defense that it paid the maximum amount due under the policy.  CPR did not request the insurer, by the manner prescribed in the policy, to allow it to exceed the allowable limit before undertaking the repairs.  As such the insurer only paid the allowable limit. 

Certified Priority Restoration identifies that one of resolution strategy should be early summary judgment if there is a viable defense that the insurer paid the maximum due under any given policy.  Rather than costly lengthy litigation, attempting an early summary judgment motion, under this defense, may be an efficient and successful resolution method. 

Claiming Punitive Damages In Commercial Motor Vehicle Accidents In Georgia

In automobile collision cases decided under Georgia law, "punitive damages are not recoverable where the driver at fault simply violated a rule of the road." Carter v. Spells, 229 Ga. App. 441, 442, 494 S.E.2d 279 (1997); ("A traffic violation, without more, simply does not rise to the level of willfully illegal behavior contemplated by the Georgia Code."). 

 The term "punitive damages" refers to damages awarded because of aggravating circumstances used to punish or deter a defendant. Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant. O.C.G.A. § 51-12-5.1. Punitive damages in personal injury cases are treated differently than other damages that may be claimed in a typical injury claim.

 The Georgia Court of Appeals confronted the issue of punitive damages in Fowler v. Smith, 237 Ga. App. 841, 516 S.E.2d 845 (1999). In Fowler, the Georgia Court of Appeals found that a genuine issue of material fact existed as to whether a truck driver's conduct exhibited that level of indifference required to support an award of punitive damages. In Fowler, the truck driver stopped his tractor-trailer behind a disabled vehicle in the center lane of Interstate 285. The driver did not place any warning devices in the highway, and although it was getting dark, he never activated the trailer's lights. Id. Thirty-five minutes later, the plaintiffs' decedent drove his car into the back of the trailer. Id. The plaintiffs sued the truck driver, his employer, and his employer's insurer, and the defendants moved for summary judgment on the plaintiffs' claim for punitive damages. Id. The trial court denied the defendants' motion and the Georgia Court of Appeals affirmed. The Court looked to the lack of lights or warning devices. The Appellate Court also pointed to evidence that the truck driver had the opportunity to move the vehicle out of the center of the highway in the thirty-five minutes prior to the collision, but failed to do so. Based on this evidence, the Georgia Court of Appeals concluded that a jury would be entitled to find that the truck driver's conduct "demonstrated that entire want of care which would raise the presumption of conscious indifference to the consequences." Id.

 In Highsmith v. Tractor Trailer Serv., the defendants stopped their pickup truck on the side of the highway when their truck started overheating. The defendants exited their vehicle, walked to the front of the truck, and opened the hood to determine the cause of the problem. Five minutes later, while the defendants were still underneath the hood of the truck, the plaintiffs' vehicle struck the left rear corner of a trailer attached to the defendant's truck, which remained partially in the roadway. The court concluded that the circumstance in Highsmith were far less egregious than those in Fowler, therefore no punitive damages were awarded.

For an award of punitive damages, defendant's actions must show willful misconduct, malice, fraud, wantonness, oppression, or a conscious disregard as to the consequences.

NJ Supreme Court Holds No Exceptions To Strict Liability For Dog Bites

The New Jersey Supreme Court partially reversed the decisions of lower Courts and held that under New Jersey law, there is no independent contractor exception to NJSA 4:19-16 (The Dog Bite Statute). Goldhagen v. Pasmowitz 2021 N.J. LEXIS 791 (Aug. 5, 2021). The Dog Bite Statute applies a strict liability standard to dog owners when their dog bites someone. This means that regardless of an owner’s intent, or prior knowledge of his/her pet’s vicious proclivities, he/she will be liable for damages if the dog bites someone and that person files suit against them. 

In Goldhagen, the Defendant had taken her dog to a pet care facility where Plaintiff worked as a “groomer and kennel assistant”. Id. at 9. Defendant informed the facility of the risk of aggression from her dog on an intake form, which would later be affixed to the door of her dog’s crate. Id. at 2. In the course of her duties, Plaintiff removed the dog from its crate without reading the form which contained the dog’s description, and was later bitten in the face, causing what the Court described as severe injuries. Id. at 1.

Subsequently, Plaintiff sued the Defendant dog owner at common law, and under the Dog Bite Statue. The Plaintiff lost in the trial court, with the Defendant being granted Summary Judgment pursuant to an Independent Contractor exception previously applied by the Appellate Division. Id. at 6. The Appellate Court later affirmed this decision. Id.

The New Jersey Supreme Court, however, upon granting cert, decided to reverse this decision and adopt a different approach. Id. at 31. (citing Reynolds v. Lancaster Cty. Prison, 325 N.J. Super. 298 (App. Div. 1999)). Specifically, the Court found that a plain reading of the Dog Bite Statute reveals no legislative intent to create an independent contractor exception, or any other exception, to the Strict Liability standard set forth in the Statute. Id. at 10. The Court’s rationale was that such a holding was not draconian for Defendant as New Jersey’s Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to - 5.8 would still apply to the extent fault was attributable to the Plaintiff. Id. at 11.

Said another way, while dog owners will still be held to a strict liability standard for the actions of their pet, a Plaintiff’s recovery can still be reduced by his/her own negligence. Id. For example, in Goldhagen, the Plaintiff’s “status as a professional experienced in the care of dogs…” would be relevant to any fault allocation. Id. Thus, while dog owners must be increasingly vigilant when it comes to monitoring their pets, it is clear that the Court cautioned against its holding being used as a sword by negligent Plaintiffs who find themselves on the receiving end of a potentially avoidable bite. 

Collateral Source Set-off and When Does it Apply

Under Florida’s Collateral Source Rule, defendants are limited significantly from presenting evidence of payments received by plaintiffs from other sources.  Without being able to credit those payments to the defense, this will potentially result in a windfall to plaintiffs.  The application of the law has become progressively more complicated over time, with different evidence and setoff rules applying to different types of payments.  Where Medicare or Medicaid payments are involved, for instance, courts have held that a jury may hear only the net amount of the medical bills after insurance adjustments.  However, where private health insurance is involved, courts have held that the jury may hear the total amount of the bills, although the defense is likely entitled to a post-verdict reduction or setoff.  Personal injury protection coverage (PIP) is treated differently in most contexts. 

The Second District Court of Appeal of Florida recently addressed collateral source setoffs pertaining to settlement proceeds received from the plaintiff’s uninsured motorist insurer.  In Ellison v. Willoughby, 46 Fla. L. Weekly D1361a (Fla. 2d DCA, June 11, 2021), the district court considered the question of whether settlement proceeds from the plaintiff’s uninsured motorist insurer constituted a payment from a “collateral source” within the meaning of section 768.76(2)(a)(2), Florida Statutes.

The court held that, consistent with the statute, the crediting of payments made under the plaintiff’s underinsured motorist policy turned on whether “a subrogation or reimbursement right exists.”   An uninsured/underinsured motorist insurer has a potential subrogation claim for the amount of uninsured motorist benefits paid as a result of the insured’s injuries. See Metro. Cas. Ins. Co. v. Tepper, 2 SO 3d 209, 214 (Fla. 2009).  Accordingly, if the settlement payments are subject to subrogation, they will not be viewed as collateral sources. The court further reasoned that: “[t]he cautious insured should not be penalized for obtaining UM insurance and, by the same token, it would be unfair for the tortfeasor to benefit by the insured's payment of the UM insurance premium or by the UM insurer's statutorily mandated payments on behalf of the tortfeasor.” Citing/quoting Economy Fire & Casualty Co. v. Obenland, 629 So. 2d 265, 267 (Fla. 2d DCA 1993).  

Since the applicability of the Collateral Source Rule and §768.76 is a significant and recurring concern for Florida litigants, Callahan and Fusco will continue to monitor court decisions on this issue.