VOLUME XVII, NUMBER 1
January, 2005

FROM THE CORNER OFFICE

For your reference, we have provided you with an article index for the year 2004.

If you have not received a particular newsletter, have questions regarding any article or are interested in a specific article, please call any one of our attorneys.

You may also visit our internet home page www.powersmcnalis.com.

On behalf of our entire staff at Powers, McNalis, Torres & Teebagy, we thank you for allowing us to serve your legal needs for the year 2004.

2004 ARTICLE INDEX

• FLORIDA SUPREME COURT HOLDS THAT SEPARATE SHOOTINGS ON THE SAME NIGHT BY SAME PERSON CONSTITUTE SEPARATE OCCURRENCES

• WHEN IS A PHYSICIAN AN EXPERT WITNESS?
• PAYMENT OF POLICY LIMITS AND AGREEMENT TO PAY ATTORNEY’S FEES DOES NOT DISCHARGE AN INSURER FROM FURTHER LIABILITY UNDER FLORIDA’S BAD FAITH STATUTE
• FALSE STATEMENTS MAY RESULT IN DISMISSAL OF PLAINTIFF’S CASE

• A DECLARATORY ACTION CANNOT BE USED BY AN INSURER TO AVOID A JURY DECISION AS TO DISPUTED FACTUAL ISSUES
• INSURERS AND THEIR EMPLOYEES ARE IMMUNE FROM CIVIL ACTION FOR REPORTING AN INSURED FOR INSURANCE FRAUD
• “KNOW THY NEIGHBORHOOD”

• MONDAY NIGHT BOXING: RELEASE SIGNED BY PLAINTIFF DOES NOT BAR LAWSUIT, BUT PARENTS CANNOT RECOVER LOSS OF CONSORTIUM DAMAGES DUE TO INJURY TO 19 YEAR OLD SON
• INSURING OTHER PEOPLE’S PROPERTY
• ECONOMIC CONCERNS DURING DISCOVERY

• FLORIDA’S IMPACT RULE DOES NOT PRECLUDE RECOVERY OF DAMAGES FOR EMOTIONAL DISTRESS FOR NEGLIGENT INTERFERENCE WITH PARENTAL RIGHTS CLAIM
• U.S. DISTRICT COURT CLARIFIES DEFINITION OF “COLLAPSE” AND “HIDDEN”
• UNFAIR CLAIM PRACTICES ARE TREATED LIKE BAD FAITH CLAIMS
• QUESTION CERTIFIED: IS PARENT’S AGREEMENT TO ARBITRATE BINDING ON MINOR CHILD?

• INSTITUTE OF MEDICINE RELEASES MOLD REPORT
• INSURED CAN PURSUE COMMON LAW CLAIM FOR INTEREST ON UNEARNED PREMIUM UNDER COMMON LAW THEORY
• FLORIDA’S “COMPLETED AND ACCEPTED” RULE
• UNITED STATES DISTRICT COURT HOLDS THAT THE PLAIN MEANING OF THE LANGUAGE OF AN INSURANCE POLICY CONTROLS IN THE ABSENCE OF AMBIGUITY IN THE CONTRACT

• TEMPORARY RELOCATION COSTS RECOVERABLE EXPENSES ON COLLAPSE CLAIM UNDER A CONDO POLICY APPRAISAL
• DAMAGES MAY BE OFFSET OR REDUCED BY EVIDENCE OF COLLATERAL SOURCE PAYMENTS
• FLORIDA’S COUNTERSIGNATURE AND SURPLUS LINES STATUTES DECLARED UNCONSTITUTIONAL AND DISCRIMINATORY AS APPLIED TO NONRESIDENT FLORIDA-LICENSED PROPERTY AND CASUALTY AGENTS

• WHERE PLAINTIFF’S MEDICAL EXPENSES WERE PAID BY MEDICARE, DAMAGES AWARDED FOR PAST MEDICAL EXPENSES ARE LIMITED TO THE AMOUNT ACTUALLY ACCEPTED BY THE PROVIDER
• PLAINTIFF DENIED WINDFALL FOR MEDICAL EXPENSES NOT OWED
• RETHINKING THE APPLICATION OF CONTIGENCY RISK MULTIPLIERS IN FEE AWARDS

• SPECIAL HURRICANE ADVISORY ISSUE: ADDRESSING POST HURRICANE ADJUSTMENT ISSUES

• DEPARTMENT OF FINANCIAL SERVICES ISSUES EMERGENCY RULES AND ORDERS PERTAINING TO PUBLIC ADJUSTERS
• THE FLORIDA SUPREME COURT HOLDS THAT THE DAMAGES RECOVERABLE BY A MINOR CHILD ARE NOT LIMITED TO THE PERIOD OF MINORITY
• PALM BEACH COUNTY CIRCUIT COURT DECLARES “INTOXICATION DEFENSE” CONSTITUTIONAL
• THE MONEY PIT

• WORK PRODUCT PROTECTION DID NOT ATTACH TO CLAIM FILE UNTIL FILE WAS SENT TO COUNSEL
• DISTRICT COURT DISALLOWS CLASS ACTION BREACH OF CONTRACT LAWSUIT AGAINST CARRIER BASED ON ALLEGED VIOLATIONS OF FLORIDA’S INSURANCE CODE
• DANGEROUS INSTRUMENTALITY DOCTRINE MAY APPLY EVEN IF THE VEHICLE IS USED FOR INTENTIONAL MISCONDUCT
• DEDUCTIBLE APPLIES ONLY TO COVERED LOSSES

• SPECIAL HURRICANE FRAUD ISSUE

LIABILITY

FOR SUBCONTRACTOR’S INTEREST BEGINS WHEN PROCEEDS WOULD HAVE BEEN DUE UNDER THE POLICY

In Owners Insurance Co. v. Hartford Fire Insurance Co., 29 FLW D1719 (August 6, 2004), the Second District Court of Appeal determined that prejudgment interest on the liability of a subcontractor’s insurer commences at the point when proceeds would have been due and not when the general contractor’s insurer paid the general contractor. That lawsuit involved a series of consolidated cases arising from a claim for property damage during the construction of the Tampa Federal Courthouse pursuant to a builder’s risk insurance policy.

Clark Construction Group was the general contractor on the courthouse project. BCI, Inc. was a subcontractor. The Owners Insurance Company (Owners) policy named BCI as a named insured, and listed Clark as an additional insured. The Hartford policy insured Clark under a consolidated general liability policy. Hartford paid Clark for the property damage to the courthouse and then made a claim under the Owners policy. In the lawsuit that followed, the trial court entered a partial summary judgment against Owners, finding that Owners was liable to Hartford for BCI’s negligence on the courthouse project. After a jury trial, Hartford obtained judgment against Owners.

Owners appealed on several grounds, including the trial court’s order granting prejudgment interest which was due commencing on the date of Hartford’s payment to Clark. On review, the Second District found that the trial court erred on that issue. In reaching that decision, the court cited Taylor v. New Hampshire Insurance Co., 489 So.2d 207 (Fla. 2d DCA 1986), which held that prejudgment interest is due from the date that proceeds would have been payable under the policy in claims for property damage made by an insured on the insurance policy.

The Second District then stated that “the principle set forth in Taylor applies to the instant case.” Accordingly, the court reversed and ordered the trial court to recalculate the prejudgment interest based on the date that the loss under the Owners policy would have been due.

Kathleen M. Bonczyk

FRYE MOTION AT WORKERS’ COMPENSATION HEARING HELD TIMELY

In reversing a ruling by the Judge of Compensation Claims (JCC), Diane B. Beck, in Keith Dirling v. Sarasota County Government and Integrated Administrators, 871 So. 2d 303, 29 FLW D973 (1st DCA Fla. 2004), the First District Court of Appeal held that a Frye motion at the final hearing is timely where that hearing was the first time the claimant knew or reasonably should have known that the expert’s opinion would present a Frye issue, since the expert’s medical report had failed to disclose that the opinion was based upon scientific studies and the expert was not deposed.

With respect to Frye testimony, the First District stated that unless the party against whom the evidence is being offered makes a specific objection, the trial court will not have committed error in admitting the evidence. If the scientific principle is established and is generally accepted in the relevant scientific community, and has been Frye tested in the legal community, it is not new or novel and the judge does not have to reapply a Frye analysis. The Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques. Thus, where new or novel scientific principles were at issue in this workers compensation matter, although generally Frye issues should be set forth in the pretrial stipulation and raised at a deposition, the JCC should have determined whether such evidence was sufficiently reliable under the Frye admissibility standards following the four-step process set forth in Ramirez v. State, 651 So.2d 1164, 1167 (Fla. 1995).

In the instant matter, claimant appealed the final order of the JCC which included denial of a Frye hearing of the employer’s medical expert and denial of Dirling’s petition for benefits based in part on that opinion. Dirling’s claim was that his condition, chronic obstructive pulmonary disease (COPD), resulted from exposure to various chemicals and fumes during the course of his employment as a mechanic and welder.

Prior to the hearing, the employer’s medical expert offered a written IME report indicating that Dirling’s worksite was a contributing factor to his total respiratory condition, but that it was not likely the major contributing cause. The report did not give any indication that the expert was relying on any epidemiologic studies either for or against causation and related Dirling’s COPD to prior cigarette smoking and genetic factors. The expert was not deposed prior to the final hearing.

The expert testified on direct examination that his opinion was based, in part, upon conflicting epidemiologic studies suggesting or discounting an association between the occupation of welder and COPD. He further stated there was no consensus at all; however, it could be a compounding variable with persons who are smokers. After further testimony related to such epidemiologic studies, claimant then made the Frye objection.

Stephanie H. Luongo