La Cava & Jacobson, P.A.

Florida Law Weekly March 15, 2015

Millard Mall Services Inc. vs. Bolda (4th DCA)

In this case, the Court addressed the issue of whether incident reports and other documents prepared following a slip and fall incident were subject to discovery. The plaintiff argued that she could overcome the work product privilege asserted by the defendant. Specifically, the plaintiff sought all records and incident reports regarding her incident as well as any other substantially similar acts or occurrences on the defendant’s property within the past three years, any and all documents concerning maintenance or cleaning of the subject premises at the time of the incident and documentation regarding maintenance of the premises by outside companies. In objecting on the basis of work product, the defendant submitted affidavits stating that the documents (which included quarterly safety committee reports) were not discoverable because they included photographs, notes of discussions surrounding the incidents and mental impressions. The trial court ordered the production of documents. The Fourth District Court of Appeal quashed that Order.

Conducting an analysis with respect to when work product materials may be produced, the Court noted that Florida Rules of Civil Procedure 1.280(b)(4) provides that any party may obtain work product materials prepared in anticipation of litigation only upon a showing that the party seeking the discovery has the need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the material by other means. The Court noted that pursuant to the Florida Rules of Civil Procedure, the party seeking the discovery must show that documentation sought contains relevant information. Only when the showing can be made will the Court order the documents to be turned over. The rationale behind the work product doctrine was noted to be that one party should not be entitled to prepare his case with the investigative work product of his adversary where the same or similar information is available through ordinary discovery procedures. Additionally, the Court noted that work product protections extend to information gathered in anticipation of litigation by corporate non-attorney employees. Importantly, the Court noted that even where a report is routinely prepared it may still qualify as work product. Ultimately, the Court found that because the plaintiff had been permitted to use the ordinary tools of discovery to obtain the information she needed, she was not entitled to the defendant’s documents.

La Cava & Jacobson, P.A.

Florida Law Weekly March 1, 2015

Harold vs Sanders (2d DCA): In this case, the Court addressed the issue of the timeliness of a request for a trial de novo following nonbinding arbitration. Factually, the Court noted that the arbitration was completed and thereafter, the Final Judgment was mailed to the parties in conformance with the arbitrators decisions. The Final Judgment noted that no party filed a request for trial de novo within 20 days of service of the arbitration decision. On the day the Trial Court entered its Final Judgment, an objection the arbitration decisions was filed and the demand for trial de novo was made. The Second District found that Florida Rule of Civil Procedure 1.090(e), extends the time for a party to request a trial de novo by five days when a Court Order regarding a nonbinding arbitration decision is served by mail. Because of the service by U.S. Mail, the plaintiff was permitted to a trial de novo as the request was made within the additional five days.

Russell Post Properties Inc. vs Leaders Bank (3d DCA): In this case, the trial court denied a request for attorneys’ fees pursuant to a rejected proposal for settlement which noted that if accepted, the plaintiff shall dismiss with prejudice any and all claims it may have against the defendant and shall execute a general release in favor of the defendant. Notably, the release was not attached to the proposal. Following trial, the plaintiff received an award that was much less than the amount offered in the proposal for settlement, prompting the defendant to seek attorneys’ fees and costs. As no release was attached to the proposal, the Trial Court found that an ambiguity existed regarding the proposal.

The Appellate Court held otherwise. It noted that pursuant to the Florida Supreme Court’s opinion in State Farm Mutual Auto Insurance Company vs Nichols, 932 So.2d 067 (Fla. 2006), the Florida Rules of Civil Procedure did not require that a release of all claims be attached to a proposal for settlement if the terms of the proposal itself provided a summary of the terms of the release. To satisfy this requirement, the proposed release must eliminate any reasonable ambiguity regarding its scope. In the case before it, the Appellate Court found that the proposal for settlement satisfied these requirements.

La Cava & Jacobson, P.A.

Jason Azzarone was successful in arguing to the Second District Court of Appeal

Jason Azzarone was successful in arguing to the Second District Court of Appeal that the Trial Court did not err in denying the Plaintiffs’ motion for new trial in Berkey v. Boyer, where the Second District Court of Appeal entered a Per Curium Affirmance. On Appeal, the Appellants argued that the Trial Court committed error by allowing the Defendants’ expert to testify at trial on the issue of the acceptable standard of care because there was no literature specifically supporting his opinions. Mr. Azzarone argued that the expert’s testimony was reliable pursuant to the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Mr. Azzarone also argued that contrary to the Appellants’ position, the expert was not required to provide articles or publications supporting his opinions in order to be admissible.