VOLUME XXI, NUMBER 3
March, 2009

THE UNDERTAKER’S DOCTRINE AND GOVERNMENTAL ENTITIES

In Wallace v. Dean, 34 Fla. L. Weekly S44a (Fla. 2009), the Florida Supreme Court held that the undertaker’s doctrine applies to governmental actors and entities who have responded to a 911 call, actually engaged an individual, and undertaken to perform a safety check. The undertaker’s doctrine states that in every situation where a person undertakes to act, or to pursue a particular course, there is an implied duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. In addition, the court also held that sovereign immunity did not bar the plaintiff’s claim because the actions of the sheriffs were undertaken within the scope of their employment and were operational in nature.

The Plaintiff in this case was the daughter of a woman who ultimately died after Marion County Sheriff’s deputies responded to a 911 call to conduct a well-being check. The Plaintiff filed a wrongful death action against Ed Dean in his official capacity as the Sheriff of Marion County. The daughter had a neighbor of her mother call 911 when she began to worry about her mother because she was unable to reach her by phone. When Marion County Sheriff’s deputies arrived, they entered through a window and let the neighbor and the neighbor’s father into the decedent’s home. The deputies found the decedent breathing but totally unresponsive and tried to rouse her by screaming her name and shaking her to no avail. The neighbor requested that the deputies call an ambulance but the deputies refused stating that the decedent was just sleeping. The neighbor’s father suggested the decedent may be in a diabetic coma, which the deputies rebuffed. The neighbor, the neighbor’s father, and the daughter of the decedent relied on the deputies assurances as to the safety of the decedent. The next day the neighbor returned to find the decedent in the same position as the day before and called an ambulance which transported the decedent to the hospital where she later died.

Wallace explains that if there is no duty, the question of sovereign immunity is never reached, but if there is a duty then the court must determine whether sovereign immunity bars the suit. Wallace further states that the presence of sovereign immunity does not render the State’s actions nontortious, but that the State has just not consented to be sued in its courts with regard to certain claims. Therefore this case addresses two separate issues, whether the Sheriff of Marion County owed a duty to the now deceased woman and whether the Sheriff is sovereignly immune.

The Court outlined a special duty of care, which works as an exception to the general guide to what activities support a duty of care between governmental entities and alleged tort victims as laid out in Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla. 1985). The Court in Wallace stated that, “A special duty arises when law enforcement officers become directly involved in circumstances which place people within a ‘zone of risk’ by creating or permitting dangers to exist, by taking persons into police custody, detaining them or otherwise subjecting them to danger.” Further, citing McCain v. Florida Power Corp., 593 so.2d 500 (Fla. 1992) the Wallace Court explained that “voluntarily undertaking to do an act that if not accomplished with due care might increase the risk of harm to others or might result in harm to others due to their reliance upon the undertaking confers a duty of reasonable care, because it thereby ‘creates a foreseeable zone of risk.’” The Court in Wallace found that the deputies affirmatively and specifically undertook to help the deceased woman and assured the deceased woman’s neighbor and neighbor’s father that she was simply sleeping. According to the Court, the neighbor and the deceased woman’s daughter relied on the deputies assurances thus increasing the risk of harm to the now deceased woman. Therefore, the Sheriff did owe a duty of care to the deceased woman and Plaintiff stated a negligence-based wrongful death cause of action against the Sheriff.

With regard to the sovereign immunity question, Wallace explains that planning level functions, those requiring basic policy decisions are generally immune from tort liability. Operational level functions, those that implement policy, are not immune from tort liability. The Court found that the deputies’ actions were “not necessary to or inherent in policy or planning, and merely reflected a secondary decision as to how preexisting policies, plans, programs or objectives would be implemented.” As a result, the deputies’ actions were operational level functions undertaken in the course and scope of their employment. The Court, therefore found that the Sheriff was not sovereignly immune.

It should be noted that there was a dissent in this case that argues that the Sheriff did not put the decedent in any worse of a position than she was already in. The dissent agreed with Everton v. Willard, 468 So.2d 936 ( Fla. 1985) which held that a decision not to assist was a discretionary decision. Further, the dissent goes on to state that the majority decision’s underlying premise was that the deputies had a duty to make a correct medical decision. The dissent argues any reliance on the deputies medical evaluation was unreasonable and therefore the majority extended the undertaker’s doctrine.

Alemayhu B. Kassahun

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EMPLOYER NOT ENTITLED TO SUMMARY JUDGMENT ON WORKER’S COMPENSATION IMMUNITY UNDER THE SUBSTANTIAL CERTAINTY TEST

In Casas v. Siemens Energy and Automation, Inc., 34 Fla. L. Weekly D151, the Third District considered whether summary judgment was properly entered in favor of the employer that claimed immunity under the Workers’ Compensation Act. An employee who received worker’s compensation benefits claimed he was entitled to bring a tort action under the “intentional torts” exception to the immunity provisions of the Act because the employer failed to provide proper training and safety devices on its machines.

The plaintiff, Rodolfo Casas, was a machine set-up operator for the operation of a mechanical punch press machine that stamped metal lids. The plaintiff had been instructed by the defendant employer that if the metal lid became stuck in the machine then he should remove it with a long metal rod or with a long screwdriver. While attempting to clear a stuck metal lid, the machine cycled and crushed the plaintiff’s arm. The plaintiff applied for and received workers’ compensation benefits, but still sued the defendant employer. The employer claimed workers’ compensation immunity under the statute, but the plaintiff countered by invoking the intentional tort exception under Florida Statute section 440.11, which provides that the plaintiff must establish that the employer had either exhibited a deliberate intent to injure or engaged in conduct which was substantially certain to result in injury or death. The plaintiff testified at his deposition that he began operating the machine by himself almost since the first day and that he was given no written materials from his employer. The defendant employer moved for summary judgment asserting that the circumstances of the case did not fall within the intentional tort exception to workers’ compensation immunity because it had provided the Plaintiff with extensive training as evidenced by its training procedures and manuals. The trial court agreed with the employer and granted the defendant’s motion.

The Third District acknowledged that the defendant employer may have had extensive training procedures and training manuals, but that did not negate the Plaintiff’s claims that he had been taught that it was safe to clear a jam by extending one’s hand into the working area of the machine without turning off the power and that he had received no formal training for his position. In considering whether the defendant employer’s motion for summary judgment was properly granted, the DCA must read the record in the light most favorable to the Plaintiff as the non-moving party. As such, the Court reasoned that if a jury believed the Plaintiff’s testimony, rather than the employer’s version of the facts, then the jury could find that employer’s conduct “engaged in conduct substantially certain to result in injury or death.” Therefore, disputed issues of material fact existed precluding summary judgment.

Angie M. Swenka

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INSURER IS ENTITLED TO REDUCE APPRAISAL AWARDS BY THE AMOUNT OF THE POLICY DEDUCTIBLE AND PRIOR PAYMENTS

In Citizens Property Insurance Corporation v. Cuban-Hebrew Congregation of Miami, Inc., 34. Fla. L. Weekly D333 (Fla. 3rd DCA 2009), the Third District Court of Appeal held that payment of an appraisal award is subject to prior payments tendered to the insured, as well as the policy deductible. The Court further held that the insured was entitled to recover its attorney’s fees, and pre-judgment interest began to accrue from the date payment of the appraisal award was due.

This case arises from a claim for Hurricane Wilma damage made by Cuban-Hebrew Congregation of Miami, Inc. (“Cuban-Hebrew”) on its Citizens Property Insurance Corporation (“Citizens”). Upon receipt of Cuban-Hebrew’s claim, Citizens investigated the loss, and tendered payment in the amount it believed was due and owing pursuant to the policy. Subsequently, Cuban-Hebrew filed suit for breach of contract and declaratory relief, wherein it alleged that Citizens failed to pay the full amount of its claim. Pursuant to Cuban-Hebrew’s request, the trial court entered an order compelling appraisal.

The parties proceeded to appraisal and an appraisal award was entered in the amount of $194,454.00 on June 18, 2007. The appraisal award, however, did not include any deductions for prior payments or the applicable policy deductible. In tendering payment of the appraisal award, Citizens subtracted prior payments that were made and the applicable deductible, thereby issuing payment in the total amount of $106,646.27. While Citizens initially mailed the check within thirty days after entry of the appraisal award, it was returned undelivered. The insured filed a motion to compel payment, and the parties entered an agreed order stating that “[t]he Defendant will forward payment to the Plaintiff pursuant to the Appraisal Award on or before September 20, 2007.” Citizens timely tendered payment in the amount of $106,646.27. Cuban-Hebrew, however, filed another motion to compel, asking the trial court to enter an order requiring Citizens to tender full payment in the amount of $194,454.00, representing the face amount of the appraisal award, as well as its attorney’s fees and pre-judgment interest. The trial court granted Cuban-Hebrew’s motion to compel, and Citizens subsequently appealed.

In granting Cuban-Hebrew’s motion to compel, the trial court interpreted the agreed order as requiring Citizens to tender payment of the full amount of the appraisal award. Moreover, the trial court reasoned that any deductions made to an appraisal award were ultimately the modification of an appraisal award. In relying on the Florida Arbitration Code for guidance, the trial court noted that any modifications to an appraisal award were required to be made within the statutory ninety-day time limit. According to the trial court’s analysis, Citizens did not attempt to request a modification of the appraisal award until after the ninety-day time period had expired. The trial court reasoned that Citizens had waived its right to make any deductions to the appraisal award, and was thereby required to tender payment of the face amount of the appraisal award.

The Third District Court of Appeals reversed the trial court’s ruling, finding that Citizens’ deduction of prior payments and the policy deductible was not a modification of the appraisal award. The Court noted that the “appraisers were directed to appraise the amount of the insured’s loss. The issue of the policy deductible and prior payments was not submitted to the appraisers.” Accordingly, the Court found that the trial court erred in requiring payment of the face amount of the appraisal award.

Importantly, in reaching its decision the Court did note that if it was not clear whether the appraisers took into account prior payments and the deductible, then the trial court would have had the authority to require the appraisers to clarify the basis of the award. The facts presented in this case, however, undisputedly demonstrated that the appraisers did not take into account the prior payments and deductible in rendering the award, as Citizens submitted an affidavit from its appraiser attesting to that fact.

Deidrie A. Buchanan