VOLUME XVIII, NUMBER 8
August, 2006

DUTY IS OWED BY PRIVATE LAND OWNERS TO MOTORISTS FOR OBSTRUCTED VIEWS DUE TO FOLIAGE  

The Fifth District Court of Appeal reversed a trial's court Summary Judgment in favor of a defendant who allegedly contributed to the off premises death of a motorist. The Fifth District held that the defendant, as owner of non-commercial property, owed a duty of care regarding foliage on the property that blocked decedent's view of the intersection, allegedly causing the fatal accident. Davis v. Dollar Rent a Car Systems, Inc., Et Al . (30 Fla.L.Weekly D2082a).

Decedent was involved in a fatal traffic accident which occurred at an intersection. The intersection had a traffic control sign which directed the decedent to yield to traffic approaching from the intersecting roadway. As the decedent approached the intersection she pulled out slowly into the intersection to make a left turn. She was hit broadside by a dump truck approaching the intersection. The personal representative of the estate alleged that decedent's vision was obscured by the foliage on the defendant's property located at the corner of the intersection, and initiated a wrongful death action.

Defendant filed a Motion for Summary judgment based upon the lack of duty owed

to the decedent by the defendant. The trial court granted defendant's motion, concluding that a duty of care was not owed. The estate appealed, contending that defendant did owe a duty of care to the decedent. The Fifth District reversed the lower court's decision.

The Fifth District determined that the foreseeable zone of risk was the applicable standard when determining if a duty was owed by private landowners. This conclusion was based upon the Florida Supreme Court's decision in McCain v. Florida Power Corp., 593 So.2d 500( Fla. 1992), which held that the foreseeable zone of risk is the appropriate standard to apply when deciding whether a duty of care was owed. The courts have since consistently applied this standard when contemplating whether a duty is owed by a private land owner.

The defendant argued that the court should adopt a strict rule of no liability for the private landowner based upon the Pedigo v. Smith , 395 So.2d 65 (Fla. 5 th DCA 1981) case. In Pedigo , the court did adopt the rule of no liability for private landowners. However, Pedigo applied the agrarian rule, which provides that a landowner is not liable for natural conditions in the urban setting. This rule was discarded in by the Supreme Court in 2001 in Whitt v. Silverman , 788 So.2d 210 ( Fla. 2001). The Fifth District found that Whitt was in line with McCain , and that private landowners did owe a duty to motorists when foliage on their property obstructed views of intersections, resulting in an accident.

The Fifth District's opinion extends liability to non-commercial property owners who until now have been held not to be liable for injuries occurring off their premises due to landscaping and other foliage on the property.

 Andrea Zigelsky  

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A SERIES OF UNFORTUNATE EVENTS: CONTRIBUTION, INDEMNIFICATION AND EQUITABLE SUBROGATION WHEN EVERYONE IS NEGLIGENT  

Hillary Tromp was injured in an automobile accident caused by Joan and Ward Huet. After the accident, Mike Shad Ford repaired Ms. Tromp's vehicle. Ms. Tromp sued the Huets for her personal injuries, along with the cost to repair her vehicle and a consortium claim by her husband. In turn, the Huets filed a third-party lawsuit against Mike Shad Ford for contribution, indemnification, and equitable subrogation. The Huets alleged that Mike Shad Ford improperly and untimely repaired Ms. Tromp's vehicle, thereby increasing the damages for which the Huets might ultimately have to pay.

Under Florida law, the initial tortfeasor, in this case the Huets, is legally responsible for the aggravated damages caused by the subsequent negligence of another party, in this case Mike Shad Ford. This principle often arises in the context of medical malpractice that occurs while a plaintiff is being treated for injuries caused by the defendant. In this case the court ruled that the principle is equally applicable to a claim for improper repairs to a vehicle after an accident. However, Florida courts have ruled that claim is invalid during the initial lawsuit, fearing that a relatively simple automobile accident lawsuit could become inundated by a more complex third-party medical malpractice action. This would not only delay the victim's eventual recovery, but preclude her from controlling the litigation she initiated. In Huet, the Fifth District Court of Appeal ruled that the claim for aggravation of damages due to post accident negligence cannot be brought at the same time as the initial lawsuit even in the simpler context of a claim for improper vehicle repair.

The court also held that the Huets could not sue Mike Shad Ford for contribution and indemnification because Mike Shad Ford was not a joint tortfeasor as required for contribution; nor was it vicariously liable to the Huets, as required for indemnification. Instead, the Court reminded the parties that the appropriate remedy for the Huets was a separate lawsuit against Mike Shad Ford for equitable subrogation. Equitable subrogation is "founded on the proposition of doing justice without regard to form, and was designed to afford relief where one is required to pay a legal obligation which ought to have been met, in whole or in part, by another." Stuart v. Hertz, 351 So.2d 703 (Fla. 1977). In other words, it requires the at fault party to pay for the damages they caused, while allowing the primary victim (Ms. Tromp) to prosecute her personal injury action without delay. Huet v. Mike Shad Ford , 915 So. 2d 723 (Fla. 5 th DCA December 2, 2005).

Mark A. Greenberg

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OPINIONS OF COUNSEL INCORPORATED IN A COBLENTZ-AGREEMENT COULD ACT AS A WAIVER OF THE INJURED PARTY'S ATTORNEY-CLIENT PRIVILEGE  

The Third District Court of Appeals recently addressed the issue of whether entering into a written Coblentz agreement expressly waives the attorney-client privilege. Chomat v. Northern Ins. Co. of N.Y. , 919 So.2d 535 ( Fla. 3d DCA 2006). A Coblentz agreement is a settlement and release agreement between an insured and an injured party in which the insured assigns to the injured party all causes of action that it has against a liability insurer. In exchange, the injured party agrees not to execute the judgment against the insured, and is free pursue the insurer for the agreed amount. The agreement is based upon the insurer's alleged breach of its duty to provide a defense to the insured. An injured party wishing to recover pursuant to a Coblentz agreement must bring an action against the insurer and prove coverage, wrongful refusal to defend and that the settlement was reasonable and in good faith.

Carlos Chomat was an employee of Southeastern Paper Products Export, Inc. Mr. Chomat suffered severe injuries in a work-related accident that resulted in the loss of most of his fingers on both hands. Mr. Chomat and his wife filed a lawsuit against Southeastern and three individual corporate officers. Northern Insurance Company was the umbrella insurance carrier for Southeastern that denied coverage for Mr. Chomat's injury. Southeastern and the three individual corporate officers entered into a Coblentz agreement with Mr. Chomat and his wife in the amount of $13.1 million for Mr. Chomat and $2 million for Mrs. Chomat.

Southeastern and the three individual corporate defendants assigned to Mr. and Mrs. Chomat any cause of action they had against Northern Insurance Company and Southeastern's insurance agent. Southeastern and the three individual corporate defendants had filed a declaratory judgment action against Northern Insurance Company and Southeastern's insurance agent seeking a declaration that there either was coverage under Northern Insurance Company's policy or that Southeastern's insurance agent either breached a contract or was negligent in failing to procure coverage. Following the execution of the Coblentz agreement, Mr. and Mrs. Chomat were substituted as plaintiffs in that declaratory judgment action.

The trial court held that there was coverage under the umbrella policy issued by Northern Insurance Company. Thereafter, Northern Insurance sought discovery as to the reasonableness and good faith of the Coblentz agreement. Mr. and Mrs. Chomat filed a Motion for Protective Order as to the discovery sought, raising attorney-client and work product privileges. Northern Insurance took the position that the plaintiffs had waived those privileges. The trial court denied the plaintiffs' Motion for Protective Order. Pursuant to the trial court's order, the insurer would have been able to discover all information to which Mr. and Mrs. Chomat asserted the attorney-client privilege. The Plaintiffs petitioned the Third District seeking protection from the trial court's order allowing the discovery.

In this case both parties agreed that the filing of an action against the insurer pursuant to the Coblentz agreement does not, without more, waive the attorney-client privilege. However, during depositions, Northern Insurance asked two of the individual corporate defendants whether the Coblentz agreement was reasonable, and they indicated that any information they had on that point came from their counsel. Northern Insurance inquired into the substance of the advice of counsel, and the petitioners objected on the grounds of attorney-client privilege. Northern Insurance argued that the Coblentz agreement entered into between the petitioners, Southeastern and the individual corporate defendants expressly waived the attorney-client privilege.

The language from the settlement agreement that Northern Insurance argued resulted in the waiver of the attorney-client privilege stated that "Southeastern has been advised by prior corporate counsel and [the individual corporate defendants] have been advised by their personal counsel, that in their opinion, the case, if tried before a jury, would result in a verdict of liability. " (Emphasis added). Northern Insurance asserted that the quoted statement in the Coblentz agreement revealed the substance of the legal advice of counsel to their clients. Thus, Northern Insurance argued that the petitioners' attorney-client privilege was expressly waived.

The Third District agreed with that argument, in part. The court held that the attorney-client privilege was waived to the extent stated, but did not act as a general waiver regarding other issues involved in the litigation over the agreement. Elsewhere in the settlement agreement, there were recitations that the parties had consulted with counsel regarding the tort action and the settlement agreement; however those recitations did not disclose the substance of the legal advice given. Therefore, the court held that those recitations in a Coblentz agreement that do not reveal the substance of the legal advice given by counsel will not accomplish a waiver of the attorney-client privilege.

Consequently, the Third District's order qualified Northern Insurance's argument, that by revealing the substance of legal advice in a Coblentz agreement, the attorney-client privilege is expressly waived as to the whole underlying action. As qualified, the court's order holds that it is only when the recitations in a Coblentz agreement disclose the substance of the legal advice given that it acts as a waiver of the attorney-client privilege with respect to the issues and extent stated, but it does not result in a waiver regarding other issues in the underlying action. Therefore, the Third District quashed the trial court's order denying the petitioners' Motion for Protective Order and affirmed it with respect to limited waiver of the attorney-client privilege.

Shaun J. Marker