Thursday, March 23, 2017

Attorney's fees -- Proposal for settlement -- Validity -- Proposals for settlement and accompanying releases were sufficiently clear and definite to allow plaintiffs to make informed decision on whether to accept the proposal -- Trial court erred in finding proposals ambiguous and unenforceable because the releases attached to the proposals contained broad language releasing individuals or entities in addition to the defendant and releasing claims or potential claims more than and broader than claims related to facts and circumstances in lawsuit


42 Fla. L. Weekly D672bTop of Form

Attorney's fees -- Proposal for settlement -- Validity -- Proposals for settlement and accompanying releases were sufficiently clear and definite to allow plaintiffs to make informed decision on whether to accept the proposal -- Trial court erred in finding proposals ambiguous and unenforceable because the releases attached to the proposals contained broad language releasing individuals or entities in addition to the defendant and releasing claims or potential claims more than and broader than claims related to facts and circumstances in lawsuit -- Language used was typical of language used in general releases and was clear and unambiguous

COSTCO WHOLESALE CORPORATION, Appellant, v. ELAINE LLANIO-GONZALEZ and LUIS GONZALEZ, Appellees. 4th District. Case No. 4D15-4869. March 22, 2017. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Gregory M. Keyser, Judge; L.T. Case No. 502013CA015496XXXMB. Counsel: David F. Cooney and Kelly Lenahan of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellant. William M. Winkel, West Palm Beach, for appellees.

(GERBER, J.) The defendant appeals from the circuit court's order denying the defendant's motion for attorney's fees. The defendant argues the court erred in finding that the defendant's proposals for settlement were ambiguous and unenforceable. We agree with the defendant and reverse.

Procedural History

The plaintiffs sued the defendant for negligence arising from a slip and fall. The defendant served one proposal for settlement upon the plaintiff wife who sued for her injuries in the slip and fall, and the other proposal upon the plaintiff husband who sued for the loss of the wife's consortium. The proposals were identical, except for the amounts which the defendant offered to each plaintiff.

The proposals' relevant paragraphs stated:

1. The Defendant . . . hereby proposes to offer [amount], inclusive of fees and costs, in settlement of all the claims contained in the above-styled matter, and any and all potential claims the Plaintiff . . . could make against the Defendant arising out of the same facts and circumstances referred to in the above-styled matter.

2. The relevant conditions to this proposal are that Plaintiff . . . will execute a general release, releasing the Defendant . . . from any and all claims raised or potentially raised against the Defendant arising out of the incident referred to in the above-styled matter (see attached proposed Release); Plaintiff's counsel will execute a Joint Stipulation for and Dismissal with Prejudice. Upon receipt of the signed Release and Stipulation for Dismissal, Defendant shall forward the settlement check to Plaintiff's counsel. After Defendant has forwarded the settlement check to Plaintiff's counsel, the Stipulation and Dismissal shall be sent to the Court along with an Order of Dismissal for the Court to execute.

3. Defendant and Plaintiff will bear their own costs and attorney's fees. The amount being offered does not specifically include attorneys' fees because attorneys' fees are not part of the claim in this case.

4. The figure against which the Defendant intends to measure this proposal for settlement is the amount of the “judgment obtained,” as this term is defined in Section 768.79, Florida Statutes.

5. This figure does not include punitive damages as there is no claim for punitive damages.

6. This proposal is intended to terminate all claims and disputes and obviate the need for further intervention of the judicial process.

The release mentioned in paragraph 2 was attached to each proposal. The release referred to the defendant as “Second Parties” and further stated, in pertinent part:

When used with reference to a corporation, the term “Second Parties” shall include both the singular and the plural, it shall include any and all related, associated or affiliated companies, any and all related, associated or affiliated parent companies, corporations, partnerships, sole proprietorships, business entities, representatives, successors, insurers, attorneys, third party administrators, privies and assigns, together with each of their respective past, present and future officers, directors, shareholders, servants, agents, employees, representatives, partners, trustees, attorneys, insurers, predecessors, successors, privies, assigns, parent corporations, subsidiaries and any and all other related, affiliated or associated persons, partnerships, corporations, firms, or business entities of any type.

The release proceeded to state that the plaintiffs, by signing the release, agreed to:

HEREBY remise, release, acquit, satisfy, and forever discharge the said Second Parties, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said First Party ever had, now has, or which any personal representative, successor, heir or assign of said First Party, hereafter can, shall or may have, against said Second Parties, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the end of these presents.

This release specifically covers, but is not limited to, any and all claims for personal injuries, pain and suffering, hospitals, doctors and nurses and all medical expenses and claims for lost wages and future lost wages, and extracontractual damages as a result of the incident and matters set forth in that certain lawsuit referred to as [case caption].

The plaintiffs did not accept the defendant's proposals for settlement. The defendant ultimately filed a motion for summary judgment. The court granted the defendant's motion.

The defendant then filed a motion to tax costs and attorney's fees pursuant to its proposals for settlement. The plaintiffs filed a response, arguing: (1) the defendant did not make the proposals in “good faith”; (2) the proposals were “improper”; and (3) the defendant did not strictly comply with Florida Rule of Civil Procedure 1.442 because the defendant “did not properly state whether the proposal includes attorneys' fees.”

The court granted the defendant's motion to tax costs. However, the court denied the defendant's motion for attorney's fees on grounds not raised in the plaintiff's response. The court found:

[E]ach of Defendant's Proposals for Settlements [are] ambiguous and unenforceable as contended by Plaintiffs in their Response, because the Proposals for Settlement contain narrow language offering to release only the Defendant . . . and release only claims arising out of the facts and circumstances referred to in this lawsuit, while the proposed Releases attached to the Proposals for Settlement contain broader language releasing individuals or entities in addition to [the defendant] and releasing claims or potential claims more than and broader than only the claims related to the facts and circumstances in this lawsuit.

This appeal followed. The defendant argues the court erred in finding that the defendant's proposals for settlement were ambiguous and unenforceable. More specifically, the defendant argues “well-settled Florida law says that the use of a standard general release as a condition of a proposal for settlement is proper and does not invalidate the proposal and because on-point case law says the language in [the defendant's] proposed releases is not ambiguous.”

Analysis

Our review of this argument is de novo. See Kuhajda v. Borden Dairy Co. of Ala., LLC, 202 So. 3d 391, 393-94 (Fla. 2016) (“The eligibility to receive attorney's fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo.”) (citation omitted). We agree with the defendant's argument.

To the extent the court found “the proposed Releases attached to the Proposals for Settlement contain broader language releasing individuals or entities in addition to [the defendant],” such a finding is inconsistent with our precedent. In Board of Trustees of Florida Atlantic University v. Bowman, 853 So. 2d 507 (Fla. 4th DCA 2003), the defendant attached to the settlement proposal a general release, which defined the “First Party” and “Second Party” broadly, as including:

[S]ingular and plural, heirs, legal representatives, agents, employees, attorneys, and assigns of individuals and the subsidiaries, affiliates, parent corporations, and each of their respective present and former officers, agents, employees including, but not limited to, shareholders, directors, attorneys, insurers, sureties, successors and assigns of corporations, agencies, or political bodies, wherever the context so admits or requires.

Id. at 508. We found the broad language in the general release, “even though expansive, is typical of other general releases and is clear and unambiguous.” Id. at 509. Similarly, in Alamo Financing, L.P. v. Mazoff, 112 So. 3d 626 (Fla. 4th DCA 2013), we found a release provision including the defendant's “parent corporations, subsidiaries, officers, directors, and employees” was “unambiguous standard release language that did not render the proposal invalid.” Id. at 631. Here, although the releases' description of the “Second Parties” is more expansive than the descriptions in Bowman or Alamo, the effect is the same. The “Second Parties” definition is “typical of other general releases and is clear and unambiguous.” Bowman, 853 So. 2d at 509.

To the extent the court found “the proposed Releases attached to the Proposals for Settlement contain broader language releasing . . . claims more than and broader than only the claims related to the facts and circumstances in this lawsuit,” such a finding also is inconsistent with precedent. The releases stated the plaintiffs would agree to release the defendant “for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents.” However, “[i]t is well-established that this type of all-inclusive language will bar all claims which have matured prior to executing the release.” Plumpton v. Cont'l Acreage Dev. Co., Inc., 830 So. 2d 208, 210 (Fla. 5th DCA 2002); see also Bowman, 853 So. 2d at 508-09 (language releasing defendant from cause of action “from the beginning of the world to the day of these presents” did not bar any claims the plaintiff may have against the defendant after the release's execution date).

Our conclusion in this case is consistent with our supreme court's precedent. “[Rule 1.442] does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). For that reason, courts are discouraged from “nitpicking” settlement proposals for ambiguities, unless the asserted ambiguity could “reasonably affect the offeree's decision” on whether to accept the settlement proposal. Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 853 (Fla. 2016) (citation and internal quotation marks omitted). Here, we conclude the proposals for settlement and accompanying releases were sufficiently clear and definite to allow the plaintiffs to make an informed decision on whether to accept the proposals.

Based on the foregoing, we reverse the circuit court's order denying the defendant's motion for attorney's fees. We remand for the court to enter an order granting the defendant's motion for attorney's fees and setting an evidentiary hearing to determine the amount of attorney's fees which the defendant is entitled to recover from the plaintiffs.

Reversed and remanded for proceedings consistent with this opinion. (WARNER and KUNTZ, JJ., concur.)

* * *

Workers' compensation -- Attorney's fees -- Amount -- Competent, substantial evidence supported judge of compensation claims' finding in support of fee awarded -- Evidence submitted by claimant was insufficient to support requested amount


42 Fla. L. Weekly D658aTop of Form

Workers' compensation -- Attorney's fees -- Amount -- Competent, substantial evidence supported judge of compensation claims' finding in support of fee awarded -- Evidence submitted by claimant was insufficient to support requested amount

ORESTES J. FERRER, Appellant, v. TRULY NOLEN OF AMERICA, INC. AND CRAWFORD & COMPANY, Appellees. 1st District. Case No. 1D14-5178. Opinion filed March 20, 2017. An appeal from an order of the Judge of Compensation Claims. Mark A. Massey, Judge. Date of Accident: December 8, 2010. Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant. Janet M. Greene of Janet M. Greene, P.A., Tampa, for Appellees.

[Prior report at 40 Fla. L. Weekly D1009a.]

(PER CURIAM.) In this workers' compensation appeal, Appellant challenges an order of the Judge of Compensation Claims (JCC) awarding a statutory guideline attorney's fee as set forth in section 440.34(1), Florida Statutes (2010). On remand pursuant to Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016), we affirm the attorney fee and cost order of October 8, 2014, on the basis of the JCC's alternate ruling. Competent, substantial evidence exists to support the JCC's alternative finding in support of the fee awarded. Appellant failed to satisfy his burden of proof regarding the requested attorney's fees. Specifically, Appellant failed to introduce evidence delineating the attorneys within the subject law firm who worked the hours claimed in the Verified Petition for Attorney Fees and/or to establish the appropriate hourly rate for the attorney hours expended.

AFFIRMED. (WOLF, ROWE, and M.K. THOMAS, JJ., CONCUR.)

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Appeals -- Certiorari -- Exclusion of scientific evidence -- Defendant in case arising out of automobile accident not entitled to certiorari review of pretrial order precluding defendant's expert witness from offering certain scientific opinions regarding effects on human body of various forces generated by collision


42 Fla. L. Weekly D644cTop of Form

Appeals -- Certiorari -- Exclusion of scientific evidence -- Defendant in case arising out of automobile accident not entitled to certiorari review of pretrial order precluding defendant's expert witness from offering certain scientific opinions regarding effects on human body of various forces generated by collision -- Legislature's adoption of Daubert standards as to admissibility of scientific evidence not basis for receding from court's prior en banc opinion holding that certiorari review of trial court's pretrial order striking expert witnesses was unwarranted due to availability of postjudgment appellate relief

RANDY LANE RHOADES, III, Petitioner, v. LILMISSETTE RODRIGUEZ, Respondent. 5th District. Case No. 5D16-4285. Opinion filed March 17, 2017. Petition for Certiorari Review of Order from the Circuit Court for Brevard County, John M. Harris, Judge. Counsel: Dale T. Gobel, of Gobel Flakes, LLC, Orlando, for Petitioner. Jeffrey M. Byrd, P.A., of Jeffrey M. Byrd, P.A., Orlando, for Respondent.

(LAMBERT, J.) Randy Rhoades petitions for a writ of certiorari, requesting that this court quash the trial court's order that limits the trial testimony of one of his expert witnesses, Dr. Steven Rundell, a biomechanical engineer. We deny the petition.

This case arises from a motor vehicle accident. Respondent, Lilmissette Rodriguez, sued Rhoades, alleging that Rhoades negligently operated his vehicle, resulting in a rear-end accident that proximately caused Rodriguez to suffer injury and damages. Rhoades listed Dr. Rundell as an expert witness, anticipating that Dr. Rundell would provide opinion testimony as to: (1) the accelerations and forces that are applied to the human body as a result of this collision, (2) the effects of such force on the human body, (3) the likelihood of damage to human bone and tissue by the application of such forces, and (4) a comparison of the forces caused by the instant motor vehicle collision with those forces that are experienced by individuals in other common daily events. Rodriguez filed a Daubert1 motion, seeking to limit Dr. Rundell from providing this testimony and to further preclude him from providing opinion testimony as to whether she sustained any injury that was causally related to the accident. Following a hearing at which Dr. Rundell testified, the trial court entered the challenged order, permitting Dr. Rundell to testify as to the forces generated by the collision of the vehicles but precluding him from testifying as to the effect of such forces as applied to the human body, the likelihood of any damage to tissue and bone resulting from such forces, a comparison of the forces caused by the collision with those forces associated with other common daily events, and whether Rodriguez was injured as a result of the accident.

Rhoades argues that as a result of Florida's adoption of the Daubert2 standards as to the admissibility of scientific evidence, Florida's trial courts have now been provided with a “broader ability to strike an expert witness,” thus necessitating a “modification in the ability for certiorari review” and the implementation of “a new appellate standard for evaluating the propriety of the trial courts' [pretrial orders]” that strike expert witnesses or limit their testimony. Rhoades contends that due to what he sees as an increase by the trial courts, post-Daubert, to strike expert witnesses prior to trial, this court should recede from our nearly unanimous en banc decision in Bill Kasper Construction Co. v. Morrison, 93 So. 3d 1061, 1062 (Fla. 5th DCA 2012), where we held that certiorari review of a trial court's pretrial order striking a defendant's expert witnesses was unwarranted due to the availability of postjudgment appellate relief. Rhoades disagrees, arguing that immediate interlocutory review of such pretrial orders is now necessary “as the only way to ensure the legal correctness of the trial court's rulings and to assure faith in the fairness of our legal system.”

“To be entitled to certiorari review, [Rhoades] must demonstrate that the [trial court's] order constitutes a departure from the essential requirements of law and results in material injury for the remainder of the case that cannot be corrected on appeal.” See Paton v. GEICO Gen. Ins. Co., 190 So. 3d 1047, 1052 (Fla. 2016) (citing Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454 (Fla. 2012)). “Simple disagreement with the decision of the trial court is an insufficient basis for certiorari jurisdiction.” Id. (citing Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000)). Furthermore, the alleged gravity of the trial court's error does not justify the relaxation of the irreparable harm prerequisite to certiorari relief. Bill Kasper, 93 So. 3d at 1063 (Torpy, J., concurring) (citing Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998)).

We decline Rhoades's invitation to recede from Bill Kasper. Moreover, subsequent to Rhoades filing his petition, the Florida Supreme Court has declined to adopt the “Daubert amendment” to section 90.702, to the extent that it is procedural, due to constitutional concerns that the court determined must be addressed in the context of a proper case or controversy (as opposed to a “rules case”). See In re: Amendments to the Fla. Evidence Code, 42 Fla. L. Weekly S179 (Fla. Feb. 16, 2017). As the supreme court's opinion could very well result in the trial court reconsidering or vacating the instant interlocutory order prior to trial, the issues we are being asked to consider may become moot. See Bill Kasper, 93 So. 2d at 1065 (Torpy J., concurring) (noting the possibility of a change in the trial court's ruling rendering moot the issues before the appellate court as an additional factor in denying certiorari review).

PETITION for WRIT OF CERTIORARI DENIED. (PALMER and EDWARDS JJ., concur.)

__________________

1Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

2Effective July 1, 2013, the Florida Legislature amended section 90.702, Florida Statutes, replacing the previously adopted “general acceptance test” for admitting expert opinion evidence described in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), with the standards set forth in Daubert for the admissibility of scientific evidence. Section 90.702 provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

§ 90.702, Fla. Stat. (2016).

The Frye test applied to expert testimony based upon new or novel scientific evidence. “Under Frye, in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.' ” Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993) (quoting Frye, 293 F. at 1014).

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Thursday, March 16, 2017

Illinois - Homeowners Insurance Policy - Declaratory Judgment - "Collapse" Coverage - Summary Judgment for Insurer -Because it is undisputed that the Dwelling, including the west wall, remained upright on its foundation after the loss incident, the loss is excluded from coverage of a collapse.


2017 WL 976396
Only the Westlaw citation is currently available.

United States District Court,
N.D. Illinois, Eastern Division. 

 
The TRAVELERS HOME AND MARINE INSURANCE COMPANY, Plaintiff,

v.

Patrick WALSH and Colleen Walsh, Defendants.

 
Case No. 15 CV 3063

Signed 03/14/2017

 
Thomas Berthold Orlando, Matthew Peter Fortin, Foran, Glennon, Palandech Ponzi & Rudloff PC, Chicago, IL, for Plaintiff.

Stephen Burriesci, Law Office of Stephen Burriesci, Chicago, IL, for Defendants.

https://ia.next.westlaw.com/StaticContent_35.2.2011/images/co_docDelivery_dottedLine.png

OPINION AND ORDER 

Joan H. Lefkow, U.S. District Judge 

*1 The Travelers Home and Marine Insurance Company filed this declaratory judgment action to determine whether it has a duty to indemnify under a homeowner's insurance policy it issued to Patrick and Colleen Walsh. Cross-motions for summary judgment are pending, and the parties agree that the case can be resolved on the issue of whether the Walshes' loss was caused by a “collapse” as that term is defined in the policy. If so, Travelers is liable. The material facts are agreed. For the reasons stated below, the motion of Travelers is granted and the motion of the Walshes is denied.1

AGREED FACTS 


As set out in the Joint Statement of Material Facts (dkt. 28), Travelers issued to the Walshes a homeowners insurance policy, effective from May 21, 2014 to May 21, 2015 (the Policy), providing certain coverage for loss and damage to the Walshes' house located on West Catalpa Avenue in Chicago (the Dwelling).

The Dwelling was a one-and-one-half story brick bungalow built in the late 1920s. In 2014, the Walshes engaged a contractor to build a second story addition above the existing Dwelling and a two-story addition off the rear. After the work started, the Walshes agreed with the contractor to expand the project to lowering the existing basement floor to be level with the basement floor of the rear addition. The Walshes temporarily moved out of the Dwelling and intended to return after the construction was completed. 

In August 2015, as a result of the contractor's malfeasance, the foundation of the Dwelling was compromised, failed, and cracked, rendering the Dwelling structurally unsound and unsafe, both for use as a dwelling and for the completion of the project. Specifically, the west brick wall laterally displaced2; the first story floor/basement ceiling (including joists) sloped downward towards the west wall, and the second story floor moved. Cracks in the mortar and large gaps or separations opened—some through which daylight was visible—between the bricks and between bricks and window framing on the west wall, and there were cracks in the mortar and large gaps or separations between the bricks on the east wall. Cracks on interior walls, ceiling and archways were also observed. No wall had fallen over to the ground, however, and no one observed that anything had come off the Dwelling and fallen to the ground, such as bricks. Soon after observing these conditions, the contractor jacked and shored the west side of the Dwelling in order to support the load of the Dwelling, and he manually removed the bricks which had comprised the west exterior wall.3 

ANALYSIS 


*2 The Illinois Supreme Court applies the following rules of construction of insurance policy provisions: 

The construction of an insurance policy and its provisions is a question of law. A court must determine the intent of the parties when construing the policy. To determine the meaning of the policy's words and the intent of the parties, the court must construe the policy as a whole, with due regard to the risk undertaken, the subject matter that is insured and the purposes of the entire contract. A policy term is not ambiguous because the term is not defined within the policy or because the parties can suggest creative possibilities for its meaning. In addition, a court cannot read an ambiguity into a policy just to find in favor of the insured. A policy provision is ambiguous only if it is subject to more than one reasonable interpretation. If a policy provision is unambiguous, however, a court must give the words of the provision their plain, ordinary and popular meaning. 

Lapham-Hickey Steel Corp. v. Protection Mut. Ins. Co., 655 N.E.2d 842, 846, 166 Ill. 2d 520, 211 Ill. Dec. 459 (1995) (internal citations and quotation marks omitted). Where the terms of a contract are clear, the court must ascertain the parties' intent solely from the language of the agreement. Commonwealth Ins. Co. v. Stone Container Corp., No. 99 C 8471, 2002 WL 31833862, at *4 (N.D. Ill. Dec. 16, 2002), citing, inter alia, LaSalle Natl. Trust, N.A. v. ECM Motor Co., 76 F.3d 140, 144–45 (7th Cir. 1996). But if the terms are ambiguous, the court may refer to extrinsic evidence to determine intent. Commonwealth Ins. 2002 WL 31833862 at *4. 

The Policy covers loss from collapse of all or part of the Dwelling resulting from the use of defective material or methods during construction, remodeling or renovation of the Dwelling. It defines “collapse” as “an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied[.]”4 Excluded from “a state of collapse,” however, is “a building or any part of a building that is in danger of falling down or caving in”; a part of a building that is standing, “even if it has separated from another part of the building”; and a building or any part of a building that is standing “even if it shows evidence of cracking, bulging, sagging, bending, leaning settling, shrinkage or expansion.” 

Two Illinois Appellate Court decisions have addressed “collapse” under a homeowners policy, both of which liberally construe the term. In Indiana Ins. Co. v. Liaskos, 697 N.E.2d 398, 297 Ill. App. 3d 569, 231 Ill. Dec. 844 (1998), the court adopted the “modern view” that the term “is sufficiently ambiguous to include coverage for any substantial impairment of the structural integrity of a building” and “does not require complete destruction or falling in of the building or a part thereof nor would it require that the loss result from a sudden catastrophic occurrence.” Id. at 404 (internal citations omitted). In Gulino v. Economy Fire & Cas. Co., 971 N.E.2d 522, 2012 IL App. (1st) 102429, 361 Ill. Dec. 420 (2012), the court defined “entire collapse of a building” to include “caving in,” meaning “to fall in or down esp[ecially] from being undermined.' ” Id.at ¶ 18 (quoting Webster's Third New Int'l Dictionary 357 (1981)). The court reasoned that “caving in” “connotes the undermining of a structure that can be something less than a complete falling down.” Id. 

*3 After Liaskos and Gulino, and until the Illinois Supreme Court decides differently,5 the legal meaning of “collapse” in a homeowners policy, disregarding the exclusions, is the sudden impairment/undermining of a structure even if the structure has not completely fallen down. If this view is adopted, the Dwelling would be in a state of collapse. 

The Policy, however, has one additional exclusion from coverage that was not present in the policies addressed in Liaskos and Gulino. The Policy does not cover a loss from a collapse if the building remains standing, even if cracked, bulging, sagging, bending, leaning, settled, shrunk or expanded. Travelers argues that this difference in policy language distinguishes the instant case from Liaskos and Gulino, citing cases from other jurisdictions in support. The Walshes argue that the court should adopt the holding of Kings Ridge Community Ass'n, Inc. v. Sagamore Ins. Co., 98 So. 3d 74 (Fl. App. 2012), that the term “standing” is ambiguous and should be construed to include a situation where a building or part of a building has significantly dropped in height or elevation from its previous level. 

In Kings Ridge, eleven roof trusses supporting a wing of a structure failed, causing the roof above the trusses and a drop ceiling below the trusses to deflect downward twelve inches. Id. at 78. The court found that the term “standing” means “upright on the feet or base; remaining at the same level, degree, or amount for an indeterminate period.” Id. (quoting Merriam-Webster's Collegiate DictionaryY 1216 (11th ed. 2008)). It concluded that, after the loss incident, the trusses, roof, and ceiling, were no longer upright on their base, no longer at the same level, degree, or height as before, and therefore not standing. 

Travelers cites cases contrary to Kings Ridge. In Residential Management (N.Y.) Inc. v. Fed. Ins. Co., 884 F. Supp. 2d 3 (E.D.N. Y 2012), the court ruled that a water tank and its steel support frame that, although leaning, had not fallen over or caved in, was excluded from “collapse” under the policy because it was standing. In Rector St. Food Enterprises, Ltd. v. Fire & Cas. Ins. Co. of Conn., 35 A.D.3d 177, 178, 827 N.Y.S.2d 18 (2006), the court ruled that a building that had to be demolished or made safe because it had two-to-three-inch-wide cracks in its fa├žade and was sinking, out of plumb, and leaning, was “indisputably standing in the hours before its demolition,” so the loss was not covered. In Mount Zion Baptist Church of Marietta v. GuideOne Elite Ins. Co., 808 F. Supp. 2d 1322, 1325 (N.D. Ga. 2011), the court ruled that, where a church sanctuary that had outwardly bowed sidewalls and a sagging roof, but the building and its components were still standing, there was no collapse under the policy. 

*4 The Policy, read as a whole, demonstrates that Travelers intended (the Walshes had no part in drafting the Policy) to cover only a peril in which the building loses its character as a building, similar to the law of Illinois before Liaskos adopted the “modern view” of collapse.6 The use of the term “a building that is standing,” in its ordinary meaning is not ambiguous. It means erect, in place on its foundation. Even if one refers to the dictionary, as in King's Ridge, to resolve the meaning of the term “standing,” it means the same. In King's Ridge, the court adopted a dictionary definition of “standing” as (1) “upright on its base” and (2) “remaining at the same level, degree, or amount for an indeterminate period.” Reference to the online version of Merriam-Webster's definition of “standing,” however, reveals that the second meaning of standing cited in King's Ridge refers to “a standing offer” or “a standing joke,” which has no relevance here. “Standing” in the policy means, as stated in King's Ridge, “upright on the base,” or, similarly, “upright on the feet or in place.” Webster's Third, supra, 2224. A house that is cracked but still upright on its base is standing; a part of a house that has dropped downward but is still upright is standing. To give the term the strained meaning the Walshes advance is simply unreasonable. Because it is undisputed that the Dwelling, including the west wall, remained upright on its foundation after the loss incident, the loss is excluded from coverage of a collapse.

ORDER


For the reasons stated above, the motion of The Travelers Home and Marine Insurance Company for summary judgment (dkt. 26) is granted. The cross motion of Patrick Walsh and Colleen Walsh for partial summary judgment (dkt. 29, 31) is denied. The Clerk is directed to enter judgment in favor of plaintiff. The case is terminated.

Footnotes

1          The court's jurisdiction rests on diversity of citizenship, as the parties are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a). Venue is proper in this district as the defendants reside and the Dwelling is located within the Northern District of Illinois. See 18 U.S.C. § 1391(b)(1),(2). The court applies the well-established method of evaluating a motion for summary judgment by construing the facts in a light most favorable to the non-movant so as to determine whether there is a genuine issue of material fact that must be tried to jury. See Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.Ed. 2d 265 (1986). Because the parties agree that a single issue resolves the case, the court views the facts in a light favorable to the Walshes. See Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L.Ed. 2d 686 (2007). It is unnecessary to treat the motions separately.

 2          The Walshes describe the wall as curved and serpentine, but the photographs referenced (JSOF, Exh. B) do not substantiate this assertion. (Dkt. 28-2) The fact is not material, in any event.

3          The Walshes assert additional facts that do not dispute the agreed facts set out above but describe the events in different terms, such as that the west wall “fell down” rather than moved downward or sloped. Patrick Walsh testified that the west wall was no longer “standing” because it was not level and upright. Colleen Walsh testified that the house is not “standing” because it is not level. Patrick Walsh testified that the west wall “caved inward and downward,” although he conceded that the structure is still standing. The Walshes also proffer facts concerning actions of Travelers' insurance adjuster, but because these facts are not material to the disposition of the motions, they are not set out here. To the extent the Walshes assertions are inconsistent with the stipulated facts set out above, they must be disregarded. The additional facts, in any event, do not create a genuine issue of material fact because the interpretation of the meaning of an insurance policy and its provisions is a question of law.

4          The parties agree that the loss incident was abrupt and caused the property to be uninhabitable.

5          This court is not bound by the appellate court decisions if it has good reason to think the Illinois Supreme Court would reject the appellate court's interpretation of Illinois law. U.S. Fid. & Guar. Co. v. Open Sesame Child Care Ctr., 819 F. Supp. 756, 759 (N.D. Ill. 1993). It is unnecessary here to consider whether Liaskos or Gulino would be rejected by the Supreme Court.

6          See Liaskos, 697 N.E.2d at 403 (citing Rubenstein v. Fireman's Fund Ins. Co., 90 N.E.2d 289, 291, 339 Ill. App. 404 (1950)) (“In the cases wherein the peril ‘collapse of building’ has been construed by the courts in various types of policies of insurance, it has been held that the entire building must lose its distinctive character as a building before there is a collapse of the building within the terms of the policy.”) (internal citations omitted). Because collapse of a part of a building is covered by the Policy, one might wonder what must be shown to demonstrate coverage where part has collapsed and part is standing. Fortunately, that issue is not before this court.

Torts -- Workers' compensation immunity -- Special employer -- No error in entering summary judgment in favor of help supply services company contractor based on finding that contractor was acting as plaintiff's special employer where record conclusively showed that plaintiff was employee of help supply services company


42 Fla. L. Weekly D625bTop of Form

Torts -- Workers' compensation immunity -- Special employer -- No error in entering summary judgment in favor of help supply services company contractor based on finding that contractor was acting as plaintiff's special employer where record conclusively showed that plaintiff was employee of help supply services company -- With respect to claims of intentional conduct and negligent hiring, among others, brought against help supply services company based upon conduct of worker who was operating conveyor belt at time plaintiff was injured, evidence showed that worker operating conveyor belt was not employed by help supply services company -- Evidence -- No abuse of discretion in refusing to consider worker's partially completed deposition as evidence where the deposition was taken prior to help supply services company becoming party to suit and no party with the same interest was present at the deposition

ANDRES MORERA, Appellant, v. WASTE MANAGEMENT INC. OF FLORIDA, a Florida corporation, TWIN LAKES LAND RECLAMATION, INC., a Florida corporation, WASTE COLLECTION, INC., a Florida corporation, and GL STAFFING SERVICES, INC., a Florida corporation, Appellees. 4th District. Case No. 4D14-3135. March 15, 2017. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 12-013045 CACE (03). Counsel: Roy D. Wasson of Wasson & Associates, Chartered, Frank L. Labrador and Mary Margaret Schneider of Demahy, Labrador, Drake, Victor & Cabeza, and Jose Manuel Francisco, Miami, for appellant. Steven H. Osber and Emily A. Thomas of Kelley, Kronenberg, P.A., Fort Lauderdale, for appellees Waste Management Inc. of Florida and GL Staffing Services, Inc.

(WARNER, J.) We affirm the final summary judgment in favor of defendants/appellees Waste Management Inc. of Florida and GL Staffing Services, Inc., in a suit for personal injuries. The trial court found that Waste Management had immunity from appellant's claims under Florida's Worker's Compensation Act because it was acting as appellant's “special employer.” We conclude that final summary judgment was properly entered because the record conclusively shows that Waste Management was immune from liability pursuant to section 440.11(2), Florida Statutes (2010), as appellant was an employee of Waste Collections, a help supply services company, as defined in Standard Industry Code Industry Number 7363 of the U.S. Department of Labor Standard Classifications.1 Although appellant argues on appeal that he should be considered as employed by a facilities support management service, defined in a separate standard, he did not make this argument to the trial court. Therefore, it is not preserved. See Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321 (Fla. 1st DCA 2011).

As to GL Staffing Services, appellant had filed suit against it for intentional conduct and negligent hiring, among other claims, based upon the conduct of worker Juarez, who was operating the conveyor belt at the time appellant was injured and whom appellant claimed was employed by GL. If GL did not employ Juarez, then it had no liability to appellant. On summary judgment, the evidence presented, including wage receipts and other documents, showed that Juarez was employed by Waste Collections, thus making him a co-employee of appellant. There was no evidence presented that GL employed appellant and was thus in any way liable. The trial court did not abuse its discretion in refusing to consider Juarez's partially completed deposition, during which, appellant claimed, Juarez had testified he was a GL employee, not a Waste Collection employee. The deposition was cut short because of Juarez's transportation problems, and the parties were unable to locate him to complete the deposition. The deposition was taken prior to GL becoming a party to the suit, and no party with the same interest as GL was present. To use a deposition on the authority of Florida Rule of Civil Procedure 1.330(a), the party against whom it is offered must have been “present or represented at the taking of the deposition or who had reasonable notice of it[.]” Moreover, as we read the excluded deposition, Juarez did not say that he was employed by GL, but merely that GL sent him to the job site. The conclusive evidence of wage receipts and other documents show that Juarez was employed by Waste Collection, the help services contractor, and not GL. Therefore, the trial court did not err in granting summary judgment.

Affirmed. (GERBER and KUNTZ, JJ., concur.)

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1Standard Industry Code Industry Number 7363 is incorporated through section 440.11(2), Florida Statutes, which provides:

The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer's business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer.

§ 440.11(2), Fla. Stat.

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Torts -- Automobile accident -- Civil procedure -- Dismissal -- Fraud on court -- False or misleadingly incomplete discovery responses


42 Fla. L. Weekly D608bTop of Form

Torts -- Automobile accident -- Civil procedure -- Dismissal -- Fraud on court -- False or misleadingly incomplete discovery responses -- Variances between plaintiff's deposition testimony in present case and an examination under oath given by plaintiff in connection with a claim he made on his uninsured motorist insurance for a subsequent accident -- Failure to disclose in written interrogatories subsequent accident and ensuing visits to health care providers related to injury issues -- Limited documentary record before trial court was not sufficient to justify decision that dismissal, rather than impeachment at trial or a traditional discovery sanction, was appropriate remedy for plaintiff's conduct -- Remand for further proceedings

EDELMIRO DUARTE, Appellant, v. SNAP-ON, INCORPORATED, a foreign corporation, and NORMAN MULLINS, Appellees. 2nd District. Case No. 2D15-1952. Opinion filed March 15, 2017. Appeal from the Circuit Court for Lee County; Elizabeth V. Krier, Judge. Counsel: Stacy L. Sherman of Stacy L. Sherman, P.A., Cape Coral, for Appellant. Scott A. Cole and Daniel M. Schwarz of Cole Scott & Kissane, P.A., Miami, for Appellee Snap-on, Incorporated. Caryn L. Bellus and Bretton C. Albrecht of Kubicki Draper, P.A., Miami for Appellee Norman Mullins.

(SALARIO, Judge.) Edelmiro Duarte was hurt when a truck owned by Snap-On, Incorporated and driven by Norman Mullins slammed into the back of his car while he was stopped in traffic. He challenges the trial court's final order, rendered without an evidentiary hearing, dismissing his personal injury suit against Snap-On and Mr. Mullins as a sanction for a fraud upon the court. Because the limited record before the trial court was insufficient to establish that this case is among the hopefully rare ones involving an unconscionable scheme to interfere with a trial court's ability to impartially resolve a dispute or a defendant's ability to prepare a defense, we are constrained to reverse.

I.

On January 18, 2008, Mr. Duarte was sitting in traffic on I-75 in a car he was driving and in which his girlfriend, her daughter, his son, and his grandson were passengers. At the same time, Mr. Mullins was on I-75 driving a truck owned by Snap-On. He smashed into Mr. Duarte's stopped car without hitting his brakes. The police report says he was driving sixty miles an hour. After being put through field sobriety tests, he was arrested for driving under the influence causing serious bodily injury.

At least some of the injuries caused by the accident were severe. Mr. Duarte's girlfriend was rendered a paraplegic. He testified that she filed suit to recover for her injuries and settled her claims for many millions of dollars. Mr. Duarte's son and grandson likewise sued to recover for their injuries and obtained much smaller, but still sizeable, settlements on their claims.

Mr. Duarte filed this suit against Mr. Mullins and Snap-On to recover for his own injuries on January 12, 2012. He claims to have suffered past, present, and future loss of earnings, medical expenses, and pain and suffering, much of which is claimed to be related to injuries to both his back and his arm. There is no dispute as to liability. The dispute is over the extent of the injuries the accident caused.

That controversy takes on significance in this case because, after he filed suit, Mr. Duarte was in another car wreck. On March 8, 2012, Mr. Duarte was rear-ended at a stop sign. The parties dispute how severe this event was and the extent to which it, rather than the January 2008 accident involving Mr. Mullins, caused the injuries for which Mr. Duarte seeks to recover in this case.

The issues in this appeal concern the candor and completeness of Mr. Duarte's discovery responses about the March 2012 accident. Shortly before that accident, Snap-On served Mr. Duarte with interrogatories asking for the names of the medical providers that treated him at any relevant time and the dates of those treatments. Mr. Duarte answered in April 2012 and identified eight providers and dates of treatment between January 2008 and April 2012. He amended his answers in April 2013 to disclose visits to several additional providers, including the Cleveland Radiology Center in March 2012 and First Chiropractic Center between March and June 2012.

Mr. Mullins served Mr. Duarte with his own interrogatories in November 2013, which asked the same questions as had Snap-On about medical providers and also asked whether Mr. Duarte had been in any accidents since the January 2008 accident. Although Mr. Duarte's answer about the medical providers included several providers from whom he sought treatment for back pain after the March 2012 accident, it did not identify Cleveland Radiology and First Chiropractic Center. Mr. Duarte's answer to the question about other accidents was “not that I remember.”

Mr. Duarte was deposed over two days in April 2013 and May 2014. During the May 2014 session, he was asked whether he had been involved in any type of accident after the January 2008 accident. He testified that he had not, “unless it was that one time that I was parked and someone hit me from behind and broke one of my lights, but I don't know if that's considered an accident.” This was a reference to the March 2012 accident. Mr. Duarte explained that he was at a stop sign and a pick-up truck “touched us and they took off quickly.” He declined to characterize the event as an accident, saying that the damage to his car “was just a few dollars” but also stating that as a result “[m]y back hurt even more, much more.” The record does not show whether this was the first time Snap-On and Mr. Mullins had heard of the March 2012 accident; we note, however, that they have not asserted that it was.

In October 2014 -- one month before the then-scheduled trial date -- Snap-On filed a motion to dismiss the case with prejudice based on fraud upon the court. Mr. Mullins joined in the motion, which essentially argued that Mr. Duarte (1) testified falsely about the severity of the March 2012 accident during his deposition and (2) failed to disclose the March 2012 accident and the subsequent visits to Cleveland Radiology Center and First Chiropractic Center -- related to back injury issues -- in written answers to interrogatories.

The motion included attached interrogatory answers and deposition transcripts upon which the claim of fraud was based. It also included the transcript of an examination under oath that Mr. Duarte gave in May 2012 in connection with a claim he made on his uninsured motorist insurance for the March 2012 accident. During that examination, Mr. Duarte described the March 2012 accident in starker terms than during his deposition in this case, characterizing it as an “accident” and describing it as a “hard impact very fast.” He also said that “the car felt the impact,” that “[t]he trunk was all bent and the bumper was indented,” and that the accident severely aggravated his back injury from the January 2008 accident.

The trial court heard the motion without taking evidence. Mr. Duarte proffered, among other things, that he did not intend to mislead anyone, that he neither reads nor speaks English -- as evidenced by his use of an interpreter for deposition -- and that he suffers from memory deficiencies due to age and medications he takes. Relying solely on the attachments to the motion, the trial court concluded that Mr. Duarte told “repeated untruths” about the March 2012 accident and that his credibility was so damaged that his testimony could not be presented to a jury. It entered an order dismissing the case with prejudice from which Mr. Duarte took this timely appeal.

II.

A trial court has the inherent authority to dismiss a suit when the plaintiff commits a fraud on the court. Howard v. Risch, 959 So. 2d 308, 310 (Fla. 2d DCA 2007), distinguished on other grounds by Ramey v. Haverty Furniture Cos., 993 So. 2d 1014 (Fla. 2d DCA 2008). Although our review in such cases is for abuse of discretion, the trial court's discretion is narrower and our review is more stringent than it would be in other cases evaluated under an abuse of discretion standard because dismissal is regarded as an extreme remedy that should be reserved for extreme cases. Id. (“Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances.”); see also Jacob v. Henderson, 840 So. 2d 1167, 1169 (Fla. 2d DCA 2003), distinguished on other grounds by Ramey, 993 So. 2d 1014. Moreover, where the trial court makes a decision without hearing evidence, as it did here, we give that decision less deference than we would in a case where the trial court heard evidence because we can evaluate a cold trial court record as well as the trial court can. Jacob, 840 So. 2d at 1170; see also Ruiz v. City of Orlando, 859 So. 2d 574, 576 (Fla. 5th DCA 2003) (reversing dismissal for fraud on the court).

To obtain a dismissal for fraud on the court, the movant must prove his case by clear and convincing evidence. See Myrick v. Direct Gen. Ins. Co., 932 So. 2d 392, 392 (Fla. 2d DCA 2006). Substantively, he must show that his opponent “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense.” Jacob, 840 So. 2d at 1169 (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998)). This standard requires that a trial court “balance two important public policies of this state: our much preferred policy of adjudicating disputed civil cases on the merits and the policy of maintaining the integrity of this state's judicial system.” Pena v. Citizens Prop. Ins. Co., 88 So. 3d 965, 967 (Fla. 2d DCA 2012) (citing Gilbert v. Eckerd Corp. of Fla., 34 So. 3d 773, 776 (Fla. 4th DCA 2010)). “Generally, unless it appears that the process of trial has itself been subverted, factual inconsistencies or even false statements are well managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim.” Howard, 959 So. 2d at 311.

Snap-On's pitch to the trial court was that Mr. Duarte played the 2008 and 2012 accidents off each other to maximize his recovery in each -- making the March 2012 accident sound serious for purposes of beefing up his uninsured motorist claim for that accident and minimizing it here because it would weaken his claim for damages based on the January 2008 accident.1 The paper record appended to Snap-On's motion to dismiss is certainly susceptible of that characterization. But that record alone was not, under our court's precedents, a sufficient basis to dismiss Mr. Duarte's claims with prejudice instead of allowing him to be impeached at trial or imposing some lesser sanction, if warranted.

Our decision in Jacob speaks to the variances in Mr. Duarte's testimony in his 2012 examination under oath and his deposition testimony in this case. Like this case, Jacob involved a dispute over the extent of a plaintiff's injuries in an automobile accident. The plaintiff testified at deposition that as a result of an injury to her arm, she was unable to close a car door with her right hand or to sweep her own driveway. The defendants later produced a surveillance video showing her doing what she said she could not. Based solely on the transcript and the video and without taking evidence, the trial court dismissed the action for fraud on the court. Holding that the trial court abused its discretion, we reversed. 840 So. 2d at 1168. We reasoned as follows:

Viewing the facts before this court, Mrs. Jacob either knowingly perpetrated a fraud, exaggerated her injuries, or unknowingly provided video evidence that her injuries are far less severe than she may believe. Only the first of these three possibilities would support the dismissal of all claims with prejudice. . . .

. . . This is not a case in which Mrs. Jacob suffered no injury. The question is the severity of her injuries. Certainly, the video evidence that she is capable of performing tasks which she has denied the ability to perform lessens her credibility . . . , but the jury should evaluate this evidence. The power to resolve disputes over the truth or falsity of claims belongs to a jury.

. . . [T]he trial court's ruling in this case resulted from a review of the same deposition and videotape that we reviewed. Trial court rulings are given less deference when they are based on the same cold document record that is before the reviewing court.

Id. at 1169-70 (emphasis added).

Like Jacob, this is not a case in which Mr. Duarte suffered no injury. The January 2008 accident was very severe, and Snap-On does not deny that Mr. Duarte had injuries from it. The dispute here is over the extent of those injuries and the extent to which the March 2012 accident caused or contributed to them. On that score, Mr. Duarte did not falsely deny that in March 2012 a pick-up truck hit his car while he was stopped. On the contrary, he identified the event as having happened but described it as being slight and not, in his opinion, rising to the level of an accident. Even then, he testified that the event made his back hurt “much more” than it did before -- a fact that undercuts a theory that his back injuries were entirely attributable to the January 2008 accident. Mr. Duarte's testimony with regard to his insurance claim on the March 2012 accident, like the video recording in Jacob, diminishes the credibility of his deposition testimony about the severity of the March 2012 accident. Without additional facts, however, the trial court record does not establish that Mr. Duarte sentiently set in motion an unconscionable scheme to defraud in this case against Snap-On and Mr. Mullins such that it would warrant a dismissal. And without additional evidence demonstrating a knowing fraud on the court in this case, the inconsistencies between his May 2012 examination under oath and his May 2014 deposition are regarded by our decisions as matters of fact and credibility for a jury to resolve. See Jacob, 840 So. 2d at 1170; see also Kubel v. San Marco Floor & Wall, Inc., 967 So. 2d 1063, 1064 (Fla. 2d DCA 2007) (holding that evidence that the plaintiff's husband asked the physician to revise a report to eliminate certain facts bearing on the plaintiff's injuries did not justify dismissal because those matters were suited for impeachment at trial).

Our decision in Howard, in turn, bears directly on the completeness of Mr. Duarte's interrogatory answers. That case, like this one, involved a dispute over the extent of a plaintiff's back injuries after an automobile accident. The defendant sought a dismissal for fraud on the court because the plaintiff failed to disclose, in response to a question at deposition, several medical matters relevant to his claim of injury. The plaintiff did reveal some matters bearing on his injuries but not all of them. The plaintiff denied an intent to provide false information. After the trial court dismissed the action without taking evidence, we reversed because the limited record before the trial court was insufficient to warrant dismissal. 959 So. 2d at 314. In particular, the trial court lacked evidence to find that the plaintiff affirmatively or intentionally misrepresented his medical conditions, and there was no evidence that the treatments the defendant later uncovered would have made any difference to the case. Id.

As in Howard, the record upon which the trial court based its decision in this case was insufficient to deem Mr. Duarte's interrogatory disclosure a fraud on the court. Insofar as Mr. Duarte's receipt of medical treatment subsequent to the March 2012 accident from Cleveland Radiology and First Chiropractic was concerned, those matters were disclosed in Mr. Duarte's amended answers to Snap-On's interrogatories. Snap-On failed to mention that fact in its dismissal motion, and the trial court failed to recognize it. Because these facts were disclosed by Mr. Duarte, the fact that they were not contained in either his initial answers to Snap-On's interrogatories or his answers to Mr. Mullins' interrogatories cannot be said to have operated as a fraud. Similarly, although Mr. Duarte's December 2013 answers to Mr. Mullins' interrogatories stated “I don't remember” in response to a question about other accidents, Mr. Mullins was informed during Mr. Duarte's deposition about the March 2012 collision and the fact that Mr. Duarte did not regard it as an accident. The essential facts were disclosed -- there was a collision, and Mr. Duarte received treatment thereafter -- but there is a dispute about the characterization of those facts. On this record, the evidence is insufficient to justify dismissal for fraud upon the court. See Howard, 959 So. 2d at 314; see also Laschke v. R.J. Reynolds Tobacco Co., 872 So. 2d 344, 346 (Fla. 2d DCA 2004) (reversing dismissal order where the evidence was insufficient to show that plaintiff's attempt to have medical records altered “was one that, if she had been successful, would have interfered with the trier of fact's ability to impartially adjudicate the issues . . . nor would it have unfairly ‘hampered' the appellees' presentation of their defense”).

We note that unlike our decision today, our court affirmed dismissals for fraud on the court based on false or misleadingly incomplete discovery responses in both Ramey, 993 So. 2d 1014, and Morgan v. Campbell, 816 So. 2d 251 (Fla. 2d DCA 2002). Those cases have several differences from the case before us, but one key difference merits comment. In each, the trial court dismissed the case after an evidentiary hearing enabled it to find as facts that the plaintiff had done something false or misleading, that the plaintiff's nonculpable explanations for his conduct were unconvincing, and that the conduct was of a kind sufficiently severe to warrant dismissal under our cases. See Ramey, 993 So. 2d at 1020; Morgan, 816 So. 2d at 253. Here, “the trial court failed to conduct an evidentiary hearing and thus lacked a sufficient evidentiary basis for determining that fraud on the court had occurred.” See Ramey, 993 So. 2d at 1020 (distinguishing cases involving this circumstance).

III.

The limited documentary record before the trial court was not sufficient to justify a decision that dismissal, rather than impeachment at trial or a traditional discovery sanction, was the appropriate remedy for Mr. Duarte's conduct. As such, the trial court abused its discretion in dismissing the action with prejudice. Its final order is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded. (LaROSE and SLEET, JJ., Concur.)

__________________

1Snap-On also suggests that Mr. Duarte aided his alleged fraud upon the court by failing to disclose a 1996 accident and failing to disclose the March 2012 accident during an independent medical examination. Based on this record, we conclude that these assertions lack merit.

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