Florida Courts Addres Rear-End Presumption in Auto Accidents

The judicially created rear-end presumption in vehicle collision cases came before the Florida First District Court of Appeal in a November 2021 opinion.  In Crime v. Looney, the trial court (Circuit Court in Duval County) held the rear-end presumption in vehicle collision cases defeated the Defendant’s claim of comparative fault. Crime v. Looney, 46 Fla. L. Weekly D2548a (Fla. 1st DCA November 24, 2021).  The First DCA held the trial court erred in its interpretation of the rear-end presumption. Id. In Looney, the Defendant presented evidence that he was not the sole cause of the accident.  As such, the First DCA held the rear-end presumption should have vanished and lost its legal effect. Id. 

In Birge v. Charron, the Florida Supreme Court addressed a similar issue with the judicially created rear-end presumption. Birge v. Charron, 107 So. 3d 350, 359 (Fla. 2012).  The Court held that the rear-end presumption is an evidentiary tool not an alternate means of tort recovery in derogation of Florida's well-established system of recovery based on comparative negligence. Id. at 361. In Looney, the First DCA adopted the reasoning from Birge, to wit: where evidence is produced from which a jury could conclude that the front driver in a rear-end collision was negligent and comparatively at fault in bringing about the collision, the presumption is rebutted and vanishes. Crime v. Looney, 46 Fla. L. Weekly D2548a (Fla. 1st DCA November 24, 2021)

The decision in Looney reinforced that Defendants in rear-end collisions can rebut the judicially created rear-end presumption.  Therefore, addressing issues of comparative negligence early in discovery is critical to rebutting the presumption of negligence in a rear-end collision.  This could put the defendant in a more favorable position regarding liability.  The ability to contest liability will lead to a stronger position during settlement negotiations.  Significantly, the party originally entitled to the presumption now has to prove their case in chief, which would be more costly and time consuming.     

Florida Supreme Court Rules that the Financial Relationship Between Defense and Expert Witness is Discoverable

Recently, on October 14, 2021, the Supreme Court of Florida revisited its ruling in Worley v. Central Florida Young Men's Christian Ass'n, 228 So. 3d 18 (Fla. 2017) in two significant decisions concerning the limits of expert witness discovery.  At its core, Worley held that the attorney-client privilege “precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a physician for treatment,” and that “a law firm representing a plaintiff in personal injury litigation that refers its clients to a specific physician for treatment is not required to disclose the extent of its referral or financial relationship with the physician.”  Id. at 24.  The Worley court did note that a defendant could explore credibility issues without conducting discovery into the possible relationship between the physician and the plaintiff’s law firm, which could potentially implicate attorney-client privileged documents and information. 

Worley is another milestone case in a line of opinions concerning the limits of financial relationship discovery to a party’s expert.  Previously, the Florida Supreme Court held in Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999), that discovery requests “regarding the extent of that party’s use of and payment to a particular expert” were permissible because they were “directly relevant to a party’s efforts to demonstrate to the jury the witness’s bias.”  Id. at 994-97.  Worley extended the Boecher rule to “allow discovery of the financial relationship between law firms and treating physicians.”   Worley, 228 So. 3d at 23.  Unfortunately for the defense, the decisions in this line of cases have strongly favored plaintiffs, and the recent decisions of Dodgen v. Grijalva and Younkin v. Blackwelder are no different.

The issue of the discoverability of a defendant’s financial relationship with an expert witness was considered by the Court in Dodgen v. Grijalva, No. SC19-1118 (Fla. 2021).  The plaintiff, below, Grijalva, sought discovery from the defendant and petitioner, Dodgen, concerning the financial relationship, if any, between Dodgen’s nonparty liability insurer and his expert witnesses.  Dodgen moved for a protective order, which the trial court denied, refusing to extend the rationale of Worley, and ordered Dodgen to produce the discovery.  The trial court did not find that the holding in Worley, that the financial relationship between a plaintiff’s law firm and treating physicians is never discoverable, applied to the financial relationship between Dodgen’s expert witnesses and his liability insurer.  Dodgen, 281 So. 3d at 490-92.  The distinction made by the trial court was that treating physicians are not hired experts.  Id.  Dodgen filed a petition for writ of certiorari in the Fourth District Court of Appeal, reasoning that Worley must equally apply to defendants and that “the financial relationship between a defendant’s law firm or insurance company and expert witnesses [must] no longer [be] discoverable.”  Id.  The Fourth District Court of Appeal denied this petition, affirming the trial court’s reasoning that Worley did not apply, but the court did hold that “the discovery laws in this context have resulted in disparate and possibly unfair treatment of plaintiffs and defendants.”  Id.

On the same day it decided Dodgen, the Florida Supreme Court decided Younkin v. Blackwelder, No. SC19-385 (Fla. 2021).  In Younkin, the plaintiff requested certain information regarding the financial relationship between the defendant's law firm and the defense's medical expert, and the defendant moved for a protective order that was denied by the trial court. Id.  The defendant filed a petition for writ of certiorari, which was denied by the Fifth District Court of Appeal, holding that the trial court’s order was consistent with the Fifth District’s earlier decision in Vazquez v. Martinez, 175 So.3d 372, 374 (Fla. 5th DCA 2015) (discovery of the doctor/law firm relationship or doctor/insurer relationship is allowed). 

With both Dodgen and Younkin, the Supreme Court did not address whether Worley, stating that “[t]he holding of Worley should be reexamined only in a case in which it is actually at issue.”  Dodgen, at 15.

However, the dissent by Justice Polston in Younkin, which echoed the opinion of Fifth District Judge Brian Lambert, offered an example that illustrates the problematic and uneven application of Worley between plaintiffs and defendants:

[U]nder Worley, a plaintiff law firm can refer 100 of its clients to the same treating physician, who may later testify as an expert witness at trial, without that referral arrangement being either discoverable or disclosed to the jury, yet if a defense firm sends each one of these 100 plaintiffs to its own expert to perform a CME [compulsory medical exam] under Florida Rule of Civil Procedure 1.360, and then later to testify at trial, the extent of the defense law firm’s financial relationship with the CME doctor is readily discoverable and can be used by the plaintiff law firm at trial to attack the doctor’s credibility based on bias…. Nevertheless, this appears to be the present status of the law.
 
That the Supreme Court has recognized that a solution is needed in this area is promising.   However, maybe the way to fix this problem is not an evenhanded approach.  Perhaps the laws will strike a balance by allowing greater discovery by defendants into how medical treatment is funded, a systemic problem in personal injury matters that has led to an explosion in the cost of medical treatment, which in turn has resulted in overvaluation of damages and, in some cases, nuclear verdicts.  We will continue to monitor changes in the law in this area, and keep you apprised of any significant developments.

Vermont Supreme Court Rejects Landlord Liability for Tenant Dog Attacks

The Vermont Supreme Court recently addressed whether a landlord who had no knowledge that a tenant’s dog had dangerous propensities could be held liable for injuries the dog causes to individuals who enter the property with tenant’s permission. See Higgins v. Bailey, 2021 VT 74. In this dog bite case, Plaintiff alleged that her neighbor invited her into his home and shortly thereafter, the neighbor’s pit bull attacked Plaintiff without provocation and causing serious injuries. Plaintiff’s neighbor rented his home from Defendant landlords, who were living in Arkansas, and Plaintiff claimed that Defendants were liable for the injuries caused by their tenant’s dog and sued for negligence.

Defendants filed a Motion for Summary Judgment and argued that they were not liable for Plaintiff’s injuries as they were not aware at the inception of the lease agreement with their tenant, or at any time prior to the attack, that their tenant’s pet had a dangerous propensity to attack people. Interestingly, tenant’s dog had previously bitten a child in the face before he rented the house from Defendant landlords. The previous bite was part of the reason tenant moved out of his prior residence. However, Defendant landlords were unaware of the previous bite when they rented to their tenant and did not ask him any questions concerning the dog. The trial court granted summary judgment to Defendant landlords and the Supreme Court affirmed.

On appeal, Plaintiff renewed her arguments made to the lower court, that landlords have a general duty of care to the public and the duty includes a reasonable inquiry concerning a tenants’ domestic animals. Additionally, Plaintiff argued that the Defendant landlords were placed on notice of the tenant’s dog’s dangerous propensities on the basis of observations made by a realtor, who was acting as Defendant landlords’ agent.

The Court described a landlord’s duty generally as follows: “a landlord owes a duty to take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons.” Id. at ¶ 15. The knew-or-should-have-known standard does not create an obligation of the part of the landlord to actively inquire into the dog’s history before permitting it to reside on the premises. Id. at ¶ 3. The trial court relied heavily on the Supreme Court’s ruling in Gross v. Turner, in which the Supreme Court established that, “reason to know” means “actual knowledge of facts that would alert a reasonable person to the dog’s vicious propensities.” 2018 VT 80 ¶ 18. Beyond that, there is simply no duty to investigate or inquire as to the background of a tenant’s animal.

In Vermont, liability in dog bite cases always depends on the propensities of the individual animal (dog-by-dog basis). The Supreme Court held that, the mere fact that the dog is a member of a suspected dangerous breed is insufficient to put its owners or others on notice that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous. Higgins, 2021 VT 74 at ¶ 11.

From a Plaintiff’s perspective, suing a landlord is the easily accessible alternative to suing a tenant who lacks the insurance and resources necessary to pay for damages and medical expenses. In Higgins, Plaintiff had originally named the tenant as a Defendant, but the court subsequently dismissed that claim at Plaintiff’s request due to tenant’s inability to pay restitution.

Generally, Higgins v. Bailey affirms previous jurisprudence weakening the ability of dog attack victims and survivors to sue landlords in cases involving tenants’ dogs.

Shifting the Burden of Proof: "Storm in Progress"

The Appellate Court of Connecticut, last month, weighed in on the question of burden shifting as it applies to the “ongoing storm doctrine” (limiting liability to landowners as to potential hazards caused and injuries sustained therefrom) when plaintiff made an appeal as to the lower court’s decision to grant summary judgment to defendants. Belevich v. Renaissance I, LLC, 207 Conn. App. 119 (2021)

In this matter, plaintiff, Robert Belevich and Yale University sought damages that were the result of an alleged trip and fall from untreated ice on the premises. The lower court granted summary judgment to defendants, pursuant to the “ongoing storm doctrine.”  On appeal, the plaintiffs claimed that the lower court improperly granted summary judgment in favor of the defendants on the basis of the ongoing storm doctrine because (1) the defendants did not establish the absence of a genuine issue of material fact as to the applicability of the doctrine, and (2) the court improperly, albeit implicitly, shifted the burden to the plaintiffs to negate the applicability of the doctrine, contending that the defendants should have been required to demonstrate that the ongoing storm produced the black ice on which the plaintiff allegedly fell. Id.

Plaintiff’s deposition unequivocally stated that it was snowing when he arrived at the premises and that it continued snowing throughout the day, including at the time of his alleged fall.  Further, plaintiff testified that there were several inches of snow on the ground and that a snowplow was contemporaneously working to clear the premises.  Defendants used plaintiff’s testimony to bolster their motion for summary judgment.

In its analysis the Court, sought guidance from its sister, the State of New York, as the issue had been well litigated as to burden-shifting.  According to this approach, the New York courts found that once a defendant proved a storm in progress, the plaintiff is required “to raise a triable issue of fact as to whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the pre-existing condition…” See Meyers v. Big Six Towers, Inc., 85 App. Div. 3d 877, 925 N.Y.S.2d 607 (2011).  The Court was persuaded by this reasoning and expressly adopted it as a matter of Connecticut Common law.

Further, according to the Court, even evidence that there was ice in the general vicinity of the accident prior to the storm is insufficient to raise a triable issue of fact as to whether the defendant had actual or constructive notice of the condition of the specific area where the plaintiff fell. See Belevich v. Renaissance I, LLC, 207 Conn. App. 119 (2021)(internal citations omitted).

In interpreting the Court’s ruling, once a defendant meets their burden of proving there was an ongoing storm at the time of injury whether with climatological evidence or as in this case, the plaintiff’s own testimony, the burden is shifted.  The plaintiff then must prove that the hazard or condition pre-existed the storm and that the defendant had actual or constructive notice of same.  This ruling therefore sets forth how Connecticut’s courts will procedurally determine the applicability of summary judgment in cases where the Ongoing Storm Doctrine is at issue.

Second Circuit Determines Indemnity Agreements Take Priority in Coverage Disputes Under New York Law

The Second Circuit recently held that, under New York law, the indemnity agreement in a contract between a contractor and subcontractor governs the priority of coverage for the contractor as an additional insured on the subcontractor’s commercial general liability policy, rather than the “Other Insurance” clause of the policy. Century Sur. Co. v Metro. Tr. Auth., 20-1474-cv, 2021 U.S. App. LEXIS (2nd Cir. Oct. 5, 2021). 

At issue in Century was a contract between defendant Long Island Railroad (“LIRR”) and Rukh Enterprises (“Rukh”) to remove lead paint. Rukh contractually agreed to indemnify LIRR against liabilities arising out of the project and named LIRR as an additional insured on its insurance policies. Rukh then hired a non-party subcontractor to perform the lead-related work.  As the result of an accident that occurred while working on the project, an employee of the subcontractor brought an action against Rukh and LIRR in State court.

Century Surety Company (“Century"), the excess liability insurer for Rukh, filed a complaint in Federal court, Southern District of New York, seeking a declaratory judgment that it had no duty to defend or indemnify any party in the State court action. Admiral Insurance Company (“Admiral”), the protective liability insurer of LIRR, filed a separate suit against Century seeking a declaratory judgment that Century was obligated to defend and indemnify LIRR and that Century’s policy must exhaust before Admiral’s policy would respond. The cases were consolidated, and all parties moved for summary judgment. The district court found that the language in the “Other Insurance” provision of the Century policy was a “true excess policy,” so Century was not liable to contribute until all available insurance policies, including Admiral’s, had been exhausted. The district court found Century was not obligated to provide insurance coverage for the underlying case. This decision was appealed. 

On appeal, the Second Circuit concluded that the indemnity agreement in the contract controlled and that even if the contractor’s insurance was excess to the owner’s insurance, the owner was entitled to indemnification from the contractor because the owner’s liability would pass through to the contractor and its insurers. In making this decision, the Second Circuit rejected the traditional procedural formalities which called for a separate action to enforce the indemnity agreement, reasoning that even if the “Other Insurance” clause might not require an indemnitee’s insurer to pay in the first instance, the indemnity agreement ultimately could require the insurer to pay, such that both obligations should be determined in one action. 

Therefore, parties entering into contracting relationships should reevaluate indemnity portions of their contracts moving forward as the Second Circuit has found New York case law supports finding an indemnity agreement to supersede “Other Insurance” clauses of an insurance policy even when a “true excess policy” is involved, which can result in excess insurance policies taking on more liability than anticipated if the underlying contracts include agreements to indemnify parties against liabilities arising out of the work being performed anticipated by the contracts.

Homeowner Emergency Measures

The number of homeowner insurance policies containing a Reasonable Emergency Measure clause has significantly grown over the last several years.  Under many of these policies, insureds are provided additional coverage for emergency services furnished to protect the insured property from further damage. Customarily, these clauses provide for a coverage limit and, consequently, any amount incurred above this threshold requires written authorization and approval from the insurer for the additional coverage to be extended.

In All Insurance Restoration Services, Inc. a/a/o Miguel Cediel and Mariela Cediel v. Citizens Property Insurance Corporation, 46 Fla. L. Weekly D2193a (Fla. 3rd DCA 2021). Florida’s Third District Court of Appeal recently affirmed summary judgment for a defendant insurer where the damages sought by the restoration company that provided the emergency services exceeded the limits of the homeowner’s insurance policy and no prior approval was obtained before the emergency services were provided.  

The pertinent facts of the opinion were as follows.  On October 22, 2017, the home of the policyholders, Miguel and Mariela Cediel, sustained water damage when the plumbing source in their refrigerator leaked.  Four days later, the Cediels hired All Insurance Restoration Services, Inc. (“AIRS”) to perform water mitigation services and assigned their benefits under the homeowners’ policy to AIRS.  AIRS completed the remediation services a little over one week later, on October 30, 2017.  On that same day, the Cediels, through their attorney, notified their homeowners’ insurer, Citizens Property Insurance Corporation, of their claim.  Citizens inspected the property on November 17, 2017.  On November 29, 2017, AIRS sent Citizens an invoice for $7,238.75 for the water mitigation services.  Prior to submitting this invoice, neither AIRS nor the Cediels requested prior approval from Citizens to exceed the $3,000 limit for reasonable emergency measures.  On December 2, 2017, Citizens sent a letter to AIRS, enclosing a $3,000 check “towards reasonable emergency measures limit of liability portion of the loss.”

AIRS deposited the $3,000 check and proceeded to file a complaint against Citizens for the balance of the invoice.  AIRS alleged, as assignee of the Cediels, that Citizens breached the insurance contract by failing to completely pay AIRS for the emergency water mitigation services rendered to the Insureds.  Citizens moved for summary judgment against AIRS and the trial court granted the motion, ruling that there was no record evidence that neither AIRS nor the insureds requested approval to perform work in excess of $3,000, and that the plain and ordinary meaning of the policy did require such prior request and approval.  The Third DCA affirmed the trial court’s ruling and held that if the “language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written.”  Id. (quoting Washington Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013)).

Policy limitations should be considered in direct and assignee claims for remediation services, like those involved in All Ins. Restoration Servs.Callahan and Fusco will continue to monitor court decisions on this issue.