Thursday, December 1, 2016

Illinois - Summary Judgment - Court properly entered summary judgment for Defendants, as Plaintiff presented no evidence, other than speculative assertions through expert affidavits, that Plaintiff fell because Defendants created and maintained condition exposing Plaintiff to unreasonable risk of injury


Summary Judgment

 Berke v. Manilow, 2016 IL App (1st) 150397 (August 23, 2016) Cook Co., 2d Div. (HYMAN)

Affirmed.
(Court opinion corrected 11/28/16.) Plaintiff fell in vestibule of apartment building where he was staying with friends; no eyewitness to fall, which left him a quadriplegic. Plaintiff filed premises liability claim against building owner and management company, alleging improper design and maintenance of vestibule, stairs, and doorway proximately caused his injuries. Court properly entered summary judgment for Defendants, as Plaintiff presented no evidence, other than speculative assertions through expert affidavits, that Plaintiff fell because Defendants created and maintained condition exposing Plaintiff to unreasonable risk of injury. (PIERCE, concurring; GORDON, specially concurring.)

Illinois - Retaliation - Record contained sufficient evidence to support jury's verdict in favor of plaintiff-employee's Title VII action alleging that defendant-employer terminated her in retaliation for having reported that her supervisor had sexually harassed her


Retaliation
 
Gracia v. Sigmatron International, Inc., No. 15-3311 (November 29, 2016) N.D. Ill., E. Div.

Affirmed
Record contained sufficient evidence to support jury's verdict in favor of plaintiff-employee's Title VII action alleging that defendant-employer terminated her in retaliation for having reported that her supervisor had sexually harassed her. While defendant claimed that plaintiff was terminated because she had failed to correct production error on customer's order, jury could properly believe plaintiff's denial regarding alleged incident, as well as disavowal of incident by co-worker, who, according to defendant, had initially reported incident. Moreover, plaintiff otherwise established causal link between her report of sexual harassment and her termination 6 weeks later, especially where evidence indicated that defendant had tolerated similar errors made by co-workers who had not protested sexual harassment. Also, record supported jury's award of $50,000 in compensatory damages, as well as $250,000 in punitive damages, even though plaintiff merely stated that her termination was "hard" on her, and that she was depressed because she had always been used to working. Too, punitive damages were not excessive given defendant's efforts to hide its retaliatory discharge by generating false paper trail that included manufactured details regarding plaintiff's job performance.

Illinois - Negligence - Dist. Ct. did not err in granting defendant-store's motion for summary judgment in action alleging that defendant was negligent when plaintiff incurred injuries arising out of her trip and fall on two stones located in defendant's parking lot.


Negligence

Piotrowski v. Menard, Inc., No. 15-3163 (November 29, 2016) N.D. Ill., E. Div.

Affirmed
Dist. Ct. did not err in granting defendant-store's motion for summary judgment in action alleging that defendant was negligent when plaintiff incurred injuries arising out of her trip and fall on two stones located in defendant's parking lot. Fact that plaintiff fell in defendant's parking lot after tripping on two stones, by itself, is not sufficient to support inference that defendant was negligent, and plaintiff's belief that she fell as a result of defendant's negligence is only speculation, especially where she presented no evidence either that: (1) defendant's employees were responsible for placement of instant stones in defendant's parking lot; (2) defendant had actual notice of stone's dangerous placement in parking lot; or (3) defendant had constructive knowledge of presence of instant stones in parking lot. Also, record failed to show either pattern of negligent conduct or recurring negligent incidents.

Torts -- Dog bite -- Strict liability -- Where plaintiff asserted statutory damages claim for strict liability against owner of guard dogs which had escaped from client's premises, trial court erred in entering final summary judgment for owner after finding as matter of law that plaintiff's actions in feeding and sheltering dogs while she attempted to identify their owners constituted an intervening, superseding proximate cause of plaintiff's injuries


41 Fla. L. Weekly D2659aTop of Form

Torts -- Dog bite -- Strict liability -- Where plaintiff asserted statutory damages claim for strict liability against owner of guard dogs which had escaped from client's premises, trial court erred in entering final summary judgment for owner after finding as matter of law that plaintiff's actions in feeding and sheltering dogs while she attempted to identify their owners constituted an intervening, superseding proximate cause of plaintiff's injuries -- Under statute, dog owner is strictly liable for injuries caused by dog bite, and owner's liability is reduced only by percentage of injured party's comparative negligence -- Whether and to what extent plaintiff is comparatively negligent for her own injuries generally is question of fact for jury -- Remand for further proceedings

LISA ARELLANO, Appellant, vs. BROWARD K-9/MIAMI K-9 SERVICES, INC., etc., Appellee. 3rd District. Case Nos. 3D16-314 & 3D15-2609. L.T. Case No. 13-18732. Opinion filed November 30, 2016. Appeals from the Circuit Court for Miami-Dade County, John Schlesinger, Judge. Counsel: Colson Hicks Eidson, and Deborah J. Gander, Maureen E. Lefebvre, W. Allen Bonner and Barbara A. Silverman, for appellant. Banker Lopez Gassler, P.A., and Sarah Lahlou-Amine and Mark D. Tinker (Tampa), for appellee.

(Before EMAS, FERNANDEZ and SCALES, JJ.)

(SCALES, J.) Appellant, plaintiff below, Lisa Arellano appeals the trial court's final summary judgment determining, as a matter of law, that Arellano's actions constituted a superseding, intervening cause, thereby precluding her statutory dog bite claim against appellee, defendant below, Broward K-9/Miami K-9 Services, Inc. (“K-9”). Arellano also appeals the trial court's cost judgment entered against her in favor of K-9. We reverse because Florida's dog bite statute imposes strict liability on dog owners, subject only to a plaintiff's comparative negligence, which in this case must be determined by the trier-of-fact.

I. Facts1

K-9 supplied two guard dogs to a commercial business located in Miami, Florida. On a Monday morning, a K-9 employee came to the business to feed and tend to the dogs, and discovered that the dogs had escaped their fenced yard. Apparently, the business had been burglarized the night before and the chain-link fence cut, allowing the dogs to escape into Arellano's neighborhood.

Believing that the dogs belonged to one of Arellano's neighbors, Arellano fed and sheltered the dogs for about five days, taking steps to find the dogs' owner. Specifically, Arellano sent an e-mail to the neighborhood watch group, and contacted County Animal Services to inquire about reports of missing dogs.

Arellano had two pet dogs of her own. When Arellano allowed the guard dogs into her fenced yard, she made sure her own dogs remained inside her home. When Arellano arrived home from work each evening, she let her dogs out into her yard and secured the guard dogs in her laundry room. On October 21, 2011, the Friday following the guard dogs' escape, Arellano arrived home from work to find the guard dogs missing. She let her two dogs into her yard. The guard dogs soon returned to Arellano's home, one of them jumping the fence. Arellano managed to stow the two guard dogs in her laundry room, but they broke free and one of the guard dogs attacked one of Arellano's dogs in the yard. When Arellano went to intervene, the attacking guard dog bit Arellano and injured her big toe. An ambulance took Arellano to the hospital, while Animal Control took custody of the guard dogs. Eventually, Animal Control determined that K-9 owned the dogs.

Arellano brought this action, asserting a statutory damages claim for strict liability against K-9. Arellano's complaint requested a jury trial. The trial court entered summary judgment for K-9, determining, as a matter of law, that Arellano's actions, albeit well intentioned, constituted an “intervening, superseding proximate cause,” thereby relieving K-9 from any liability to Arellano. The trial court also entered a $7,615.36 judgment taxing costs against Arellano. Arellano timely appealed both the summary judgment (case number 3D15-2609) and the cost judgment (case number 3D16-314); we consolidated the appeals. We reverse both judgments.

II. Analysis2

Arellano's claim against K-9 is founded upon Florida's dog bite statute that reads, in relevant part, as follows:

The owner of any dog that bites any person . . . is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners' knowledge of such viciousness. However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the biting incident.

§ 767.04, Fla. Stat. (2011).

As is clear from the statute, a dog owner is strictly liable for the injuries caused by the dog's biting of someone; and that owner's liability is reduced only by the percentage of the injured party's comparative negligence that contributed to the incident.

In this case, the trial court essentially determined that Arellano's actions effectively dispossessed K-9 of ownership of the dogs, and broke the chain of proximate causation so as to relieve K-9 from the strict liability imposed by section 767.04. Put another way, the trial court concluded that K-9 established the common law defense that Arellano's damages were caused by an intervening, superseding cause, rather than by any act or omission of K-9. Thus, the trial court determined, as a matter of law, that Arellano's actions as they related to the dogs reduced K-9's liability to zero.

The trial court, however, reversibly erred by removing this issue from the jury and determining it as a matter of law. German-American Lumber Co. v. Brock, 46 So. 740, 744 (Fla. 1908) (“If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue, it should be submitted to the jury as a question of fact, and not taken from them and passed upon by the judge as a question of law.”); Plant v. Podesta, 579 So. 2d 285 (Fla. 3d DCA 1991). A jury might very well decide that Arellano's actions, in whole or in part, were a proximate cause of the incident, thereby reducing or even eliminating K-9's liability. In our view, the statute plainly contemplates the role of the jury in making this call based on the facts and circumstances of the case.

We are mindful that, in a common law negligence action, summary judgment is appropriate when the undisputed facts conclusively establish that an intervening, superseding event -- rather than a tortfeasor's negligence -- caused the plaintiff's damages. See, e.g., Valdes v. Miami Herald Publ'g Co., 782 So. 2d 470, 471 (Fla. 3d DCA 2001). Arellano's claim, however, is not one sounding in negligence; her claim is founded upon section 767.04, which effects the legislative purpose of imposing on a dog owner strict liability for dog bite damages. The statute prescribes a limited exception to such strict liability: the plaintiff's comparative negligence.3 Whether and to what extent a plaintiff is comparatively negligent for her own injuries generally is a fact question for the jury. Goldberg v. McCabe, 313 So. 2d 47 (Fla. 3d DCA 1975).

III. Conclusion

Genuine issues of material fact exist as to whether, and to what extent, K-9's liability for Arellano's injuries should be reduced because of Arellano's actions. We reverse the trial court's final summary judgment determining that, as a matter of law, Arellano's actions reduced to zero K-9's liability. Therefore, we also reverse the resulting cost judgment in K-9's favor. We remand the case to the trial court for proceedings consistent herewith.

Reversed and remanded.

__________________

1When reviewing a summary judgment, we view the facts in a light most favorable to Arellano, the non-moving party. Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002).

2We review a trial court's summary judgment de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).

3The statute provides another limited exception when the dog bite occurs on the owner's private property and the owner has posted a “Bad Dog” sign. § 767.04, Fla. Stat. (2011). We reject K-9's suggestion that this exception is somehow applicable to this case.

* * *

Workers' compensation -- Mediated settlement agreement -- Enforcement


41 Fla. L. Weekly D2688aTop of Form

Workers' compensation -- Mediated settlement agreement -- Enforcement -- Where parties entered into mediated settlement agreement which required claimant to execute a general release and resignation in favor of employer, written paperwork prepared by employer/carrier included references to circumstances whereby claimant and his attorney would indemnify and hold harmless the employer/carrier, and claimant and his attorney struck those provisions and returned signed paperwork to the employer/carrier, it was error for judge of compensation claims to deny claimant's motion to enforce the agreement on the basis that there was no meeting of the minds -- “Release” differs from “indemnification,” and indemnification was not an essential term of the agreement -- Inclusion of indemnification in paperwork prepared by employer/carrier constituted a new offer which claimant declined to accept, but claimant's rejection of the new offer did not nullify the previous agreement

ERLIYING SOTO, Appellant, v. C-WORTHY CORP./SUMMIT HOLDINGS-CLAIMS CENTER, Appellees. 1st District. Case No. 1D16-1968. Opinion filed December 1, 2016. An appeal from an order of the Judge of Compensation Claims. Daniel A. Lewis, Judge. Date of Accident: September 1, 2015. Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant. H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach.

(PER CURIAM.) In this workers' compensation appeal, Claimant seeks reversal of the Judge of Compensation Claims' (JCC's) denial of his motion to enforce a mediation settlement agreement. For the following reasons, we agree the JCC erred in denying Claimant's motion.

The parties participated in a mediation conference which resulted in a mediation conference report and a written mediation settlement agreement. The written settlement agreement required Claimant to “execute a general release and resignation in favor of the employer.” When the settlement paperwork prepared by the Employer/Carrier (E/C) was received by Claimant's attorney, it included references to several circumstances whereby Claimant and his attorney would “indemnify and hold harmless” the E/C. Claimant and his attorney struck those provisions, and returned the signed paperwork to the E/C.

When the E/C advised Claimant they were backing out of the settlement, Claimant's attorney forwarded a copy of the paperwork on to the JCC with a motion seeking approval of the attorney's fee and allocation of child support arrearage. After the E/C filed a motion objecting to the approval of Claimant's motion, Claimant filed a motion to enforce the settlement and the JCC held an evidentiary hearing on the motion.

In his order denying Claimant's motion, the JCC determined that the parties did not reach a meeting of the minds regarding the indemnification language. Accordingly, he found that an essential element of the agreement was not established, and on that ground determined the agreement was not enforceable.

On appeal, Claimant argues that because a “release” differs from “indemnification,” indemnification was not an essential term of the agreement and, thus, the JCC erred in finding the parties failed to agree on an essential term. Because it is not disputed that the mediation settlement agreement was unambiguous, Claimant argues that the JCC should have reviewed only the terms of the agreement when determining whether there was a meeting of the minds.

“[I]t is within the province of the JCC to determine whether a settlement was reached, and if so, to establish its terms.” Chubb Group Ins. Co. v. Easthagen, 889 So. 2d 112 (Fla. 1st DCA 2004). Settlement agreements “are governed by the rules for interpretation of contracts[,] are highly favored and will be enforced whenever possible.” Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (citation omitted). “The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs -- not on the parties having meant the same thing but on their having said the same thing.” Id. (quoting Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So. 2d 404, 407 (Fla. 1974). “Where the terms of a contract are clear and unambiguous, the parties' intent must be gleaned from the four corners of the document.” Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011). Because resolution of this issue requires interpretation of a written document, review is de novo. See Risco USA Corp. v. Alexander, 91 So. 3d 870 (Fla. 1st DCA 2012).

The JCC assumed that a general release would include an indemnification agreement and it is this assumption that led to his error. Black's Law Dictionary defines “release” as “[l]iberation from an obligation, duty, or demand; the act of giving up a right or claim to the person against whom it could have been enforced.” 1292 (7th ed. 1999). To “indemnify” requires one “[t]o reimburse (another) for a loss suffered because of a third party's act or default.” 772 (7th ed. 1999). Thus, an agreement to sign a release does not result in an agreement to indemnify the other party.

The facts here are analogous to the facts in Bonagura v. Home Depot, 991 So. 2d 902 (Fla. 1st DCA 2008). In Bonagura, it was undisputed that the parties reached a “binding oral settlement agreement.” Id. at 904. The paperwork prepared subsequently included material matters -- a general release -- that had not been discussed. Id. at 905. The Bonagura Court determined that “[b]ecause no release was negotiated and settled, this release is not a part of the parties' settlement or ‘necessary paperwork' to be executed.” Id. Here, the parties executed an unambiguous written agreement to settle this matter and no mention was made regarding indemnification. Because indemnification had not been negotiated, its inclusion in the “necessary paperwork” exceeded the scope of the written agreement, such that it was in effect a new offer which Claimant declined to accept. See id. Claimant's rejection of this new offer did not, however, nullify the previous agreement under the terms as set out in the valid, binding settlement agreement. See id.

Accordingly, the order is REVERSED, and the matter REMANDED for entry of an order granting Claimant's motion to enforce the settlement agreement. (WOLF, RAY, and MAKAR, JJ., CONCUR.)

* * *


 

Insurance -- Homeowners -- All risk policy -- Coverage -- Loss caused by multiple perils -- Where loss is caused by multiple perils and at least one of the perils is excluded from coverage, the proper theory of recovery is the concurring cause doctrine -- Under the concurrent cause doctrine, coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause


41 Fla. L. Weekly S582aTop of Form

Insurance -- Homeowners -- All risk policy -- Coverage -- Loss caused by multiple perils -- Where loss is caused by multiple perils and at least one of the perils is excluded from coverage, the proper theory of recovery is the concurring cause doctrine -- Under the concurrent cause doctrine, coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause -- Insureds were entitled to coverage for loss caused by defective construction, which was an excluded peril, and rainwater and hurricane winds, which were covered perils -- Trial court may properly consider settlements received from third parties as a post-judgment offset to judgment against insurer

JOHN ROBERT SEBO, etc., Petitioner, vs. AMERICAN HOME ASSURANCE COMPANY, INC., Respondent. Supreme Court of Florida. Case No. SC14-897. December 1, 2016. Application for Review of the Decision of the District Court of Appeal -- Direct Conflict of Decisions. Second District - Case No. 2D11-4063 (Collier County). Counsel: Edward K. Cheffy, David Allan Zulian, and Debbie Sines Crockett of Cheffy Passidomo, P.A., Naples; and Mark Andrew Boyle, Geoffrey Henry Gentile, Michael Wade Leonard, Amanda Kaye Anderson, Molly Ann Chafe Brockmeyer, Justin Michael Thomas, and Thomas Patrick Rechtin of Boyle, Gentile & Leonard, P.A., Fort Myers, for Petitioner. Anthony J. Russo, Scott J. Frank, Christopher M. Ramey, and Ezequiel Lugo of Butler Weihmuller Katz Craig LLP, Tampa; Janet L. Brown and Susan B. Harwood of Boehm, Brown, Harwood, P.A., Maitland; and Raoul G. Cantero, III, David P. Draigh, and Ryan Andrew Ulloa of White & Case LLP, Miami, for Respondent. Richard Hugh Lumpkin and Benjamin C. Hassebrock of Ver Ploeg & Lumpkin, P.A., Miami; and George Alexander Vaka and Nancy Ann Lauten of Vaka Law Group, P.L., Tampa, for Amicus Curiae United Policyholders. Michael Jerome Higer and Colleen Alexis Maranges of Higer Lichter & Givner, LLP, Aventura, for Amicus Curiae The Florida Association of Public Insurance Adjusters. James Andrew McKee, Thomas Joseph Maida, and Benjamin James Grossman of Foley & Lardner LLP, Tallahassee, for Amici Curiae Florida Insurance Council, Property Casualty Insurance Association of America, National Association of Mutual Insurance Companies, and American Insurance Association.

(PERRY, J.) John Sebo seeks review of the decision of the Second District Court of Appeal in American Home Assurance Co. v. Sebo, 141 So. 3d 195 (Fla. 2d DCA 2013), on the ground that it expressly and directly conflicts with a decision of the Third District Court of Appeal in Wallach v. Rosenberg, 527 So. 2d 1386 (Fla. 3d DCA 1988), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the following reasons, we quash the decision in Sebo, and approve the rationale of the Third District in Wallach.

FACTS

The facts of this case are taken from the Second District Court of Appeal's opinion:

[John] Sebo purchased [a Naples, Florida] home in April 2005, when it was four years old. [American Home Assurance Company (AHAC)] provided homeowners insurance as of the date of the purchase. The policy, which insured against “all risks,” was issued through a private client group and was referred to as a manuscript policy. It was not a standard form but instead was created specifically for the Sebo residence. The house and other permanent structures were insured for over $8,000,000. The policy also provided additional coverage for loss of use of the home.

Shortly after Sebo bought the residence, water began to intrude during rainstorms. Major water leaks were reported to Sebo's property manager as early as May 31, 2005. She prepared a list of problems: leaks in the main house at the foyer, the living room, dining room, piano room, exercise room, master bathroom, and upstairs bathroom. By June 22, 2005, the property manager advised Sebo of these leaks in writing. It became clear that the house suffered from major design and construction defects. After an August rain, paint along the windows just fell off the wall. In October 2005, Hurricane Wilma struck Naples and further damaged the Sebo residence.

Sebo did not report the water intrusion and other damages to AHAC until December 30, 2005. AHAC investigated the claim, and in April 2006 it denied coverage for most of the claimed losses. The policy provided $50,000 in coverage for mold, and AHAC tendered that amount to Sebo but stated that “the balance of the damages to the house, including any window, door, and other repairs, is not covered.” In May 2008, Sebo renewed his claim and sent more information about the damages to AHAC, but AHAC again denied the claim except for the $50,000 in mold damages.

The residence could not be repaired and was eventually demolished. In January 2007, Sebo filed suit against a number of defendants, including the sellers of the property, the architect who designed the residence, and the construction company that built it. He alleged that the home had been negligently designed and constructed and that the sellers had fraudulently failed to disclose the defects in the property. Sebo eventually amended his complaint in November 2009, adding AHAC as a defendant and seeking a declaration that the policy provided coverage for his damages. After Sebo settled his claims against a majority of all other defendants, the trial proceeded only on his declaratory action against AHAC. The jurors found in favor of Sebo, and the court eventually entered judgment against AHAC.

Sebo, 141 So. 3d at 196-97.

On appeal, the Second District found that “[t]here is no dispute in this case that there was more than one cause of the loss, including defective construction, rain, and wind.” Id. at 197. However, the court disagreed with the trial court's application of Wallach, 527 So. 2d 1386, and, in fact, disagreed with the Third District's “determination that the concurrent causation doctrine should be applied in a case involving multiple perils and a first-party insurance policy.” Sebo, 141 So. 3d at 198. The court reversed and remanded for a new trial, “in which the causation of Sebo's loss is examined under the efficient proximate cause theory.” Id. at 201.

Standard of Review

The issue presented is whether coverage exists under Sebo's all-risk policy when multiple perils combined to create a loss and at least one of the perils is excluded by the terms of the policy. To answer this question, this Court must determine the proper theory of recovery to apply, which is a pure question of law. Therefore, the review is de novo. Fayad v. Clarendon Nat'l Ins. Co., 899 So. 2d 1082, 1085 (Fla. 2005).

Additionally, the policy at issue in this case is an all-risk policy. We have stated that “[a]lthough the term ‘all-risk' is afforded a broad, comprehensive meaning, an ‘all-risk' policy is not an ‘all loss' policy, and this does not extend coverage for every conceivable loss.” Id. at 1086 (citation omitted). Insurance contracts are construed in accordance with the plain language of the policy. Id. (citing Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33 (Fla. 2000)). However, if the language is susceptible to more than one reasonable interpretation and is therefore ambiguous, the policy will be strictly construed against the insurer and in favor of the insured. Id. “[A]mbiguous ‘exclusionary clauses are construed even more strictly against the insurer than coverage clauses.' ” Id. (quoting Anderson, 756 So. 2d at 34). In short, in all-risk policies such as the one held by Sebo, construction is governed by the language of the exclusionary provisions.

DISCUSSION

We are confronted with determining the appropriate theory of recovery to apply when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. When addressing this question, courts have developed competing theories on how to determine coverage: the efficient proximate cause and concurring cause doctrines. To begin our analysis, we first explain these doctrines. Then we discuss the Second District's decision below. We conclude that when independent perils converge and no single cause can be considered the sole or proximate cause, it is appropriate to apply the concurring cause doctrine. Accordingly, we quash the decision below.

Efficient Proximate Cause (EPC)

The EPC provides that where there is a concurrence of different perils, the efficient cause -- the one that set the other in motion -- is the cause to which the loss is attributable. Sabella v. Nat'l Union Fire Ins. Co., 377 P.2d 889, 892 (Cal. 1963); Fire Ass'n of Phila. v. Evansville Brewing Ass'n, 75 So. 196 (Fla. 1917).

We applied the EPC in Evansville Brewing, where the coverage at issue provided under an all-loss fire policy excluded loss caused by an explosion. We explained, “[w]hile the insurer is not liable for a loss caused by an explosion which was not produced by a preceding fire, yet if the explosion is caused by fire during its progress in the building, the fire is the proximate cause of the loss, the explosion being a mere incident of the fire, and the insurer is liable.” Evansville Brewing, 75 So. at 198. In Evansville Brewing, we contemplated a chain of events where one peril directly led to a subsequent peril. In finding that coverage existed under the policy, we drew the distinction between a covered peril setting into motion an uncovered peril and an uncovered peril setting into motion a covered peril. Coverage exists for the former but not the latter.

The EPC was explained by the California Supreme Court1 in Sabella, where it reasoned, “ ‘in determining whether a loss is within an exception in a policy, where there is a concurrence of different causes, the efficient cause -- the one that sets others in motion -- is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.' ” Sabella, 377 P.2d at 895 (quoting 6 George J. Couch, Cyclopedia of Insurance Law § 1466, at 5303-04 (1930)). The California Supreme Court thus reasoned that a covered peril that convenes with an uncovered peril may still provide for coverage under a policy when the covered peril triggered the events that eventually led to the loss.

Concurrent Cause Doctrine (CCD)

The CCD provides that coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause. See Wallach, 527 So. 2d 1386; State Farm Mut. Auto. Ins. Co. v. Partridge, 514 P.2d 123, 133 (Cal. 1973).

The CCD originated with the California Supreme Court's decision in Partridge, where the court was presented with “a somewhat novel question of insurance coverage: when two negligent acts of an insured -- one auto-related and the other non-auto-related -- constitute concurrent causes of an accident, is the insured covered under both his homeowner's policy and his automobile liability policy, or is coverage limited to the automobile policy?” Id. at 124-25. The insured, Wayne Partridge, owned a .357 Magnum pistol and had filed the trigger mechanism to create “hair trigger action.” Id. at 125. Partridge was driving two friends, Vanida Neilson and Ray Albertson, in his insured Ford Bronco when he spotted a jack rabbit. In pursuit of the rabbit, he drove the Bronco off the road and hit a bump, causing the pistol to discharge. A bullet entered Neilson's arm, penetrated her spinal cord, and left her paralyzed. Id. Neilson filed an action against Partridge and entered into settlement discussions with State Farm. This dispute arose because the parties did not agree whether recovery was available from both the homeowner's and automobile policies. The homeowner's policy contained an exclusion for bodily injury arising out of the use of any motor vehicle. Id. at 126. State Farm relied on this exclusionary language to argue that only the automobile policy provided coverage for the injuries. Specifically, State Farm argued that the language of the policies was intended to be mutually exclusive and not provide for overlapping coverage. Id. at 128.

The California Supreme Court disagreed. First, the court noted that exclusionary clauses are more strictly construed than coverage clauses. Next, the court reasoned that an insured risk combined with an excluded risk to produce the ultimate injury and determined “that coverage under a liability insurance policy is equally available to an insured whenever an insured risk constitutes simply a concurrent proximate cause of the injuries.” Id. at 130 (applying the rationale of Brooks v. Metro. Life Ins. Co., 163 P.2d 689 (Cal. 1945)). Thus, because neither peril could have created the loss alone but instead combined to create the loss, the California Supreme Court could not identify the prime, moving, or efficient cause in order to determine coverage, and pronounced a new doctrine.

The CCD was first applied in Florida in Wallach, where the Third District considered the coverage available to the Rosenbergs after Wallach's sea wall collapsed and led to a portion of the Rosenbergs' sea wall crumbling. 527 So. 2d 1386. The Rosenbergs filed suit against Wallach, claiming that he had breached his duty to maintain his premises. They also filed a claim under their all-risk homeowner's policy, which was denied because the policy contained an exclusion for loss resulting from earth movement or water damage. Id. at 1387. On appeal, the insurance company argued “that where concurrent causes join to produce a loss and one of the causes is a risk excluded under the policy, then no coverage is available to the insured.” Id. The Third District rejected that theory and adopted “what we think is a better view -- that the jury may find coverage where an insured risk constitutes a concurrent cause of the loss even where ‘the insured risk [is] not . . . the prime or efficient cause of the accident.' ” Id. at 1387 (quoting 11 Ronald A. Anderson, Couch on Insurance 2d § 44:268, at 417 (rev. ed. 1982)). Further, the Third District noted that the California Supreme Court found the efficient cause language of Sabella “to be of little assistance in cases where both causes of the harm are independent of each other.” Id. at 1388 (“We agree with the California court that the efficient cause language set forth in Sabella and cited by [Phelps] offers little analytical support where it can be said that but for the joinder of two independent causes the loss would not have occurred.” (citing Partridge, 514 P.2d at 130 n.10)). Accordingly, the Third District held that “[w]here weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Id. (citing Safeco Ins. Co. v. Guyton, 692 F.2d 551 (9th Cir. 1982)). Wallach has continued to be applied in Florida courts until the Second District's decision in Sebo. We accepted jurisdiction based on the conflict between Wallach and Sebo.

This Case

After determining that there was “no dispute in this case that there was more than one cause of the loss, including defective construction, rain, and wind,” the Second District noted below that the parties had filed cross-motions for summary judgment, in which Sebo had asserted that AHAC was required to cover all losses under the concurrent cause doctrine. Sebo, 141 So. 3d at 197. Then, the court expressed its disagreement with Wallach's application to cases involving multiple perils and a first-party insurance policy.2 Id. at 198. Relying on the California Supreme Court's clarification in Garvey v. State Farm Fire & Cas. Co., 770 P.2d 704 (Cal. 1989), the Second District reasoned that “a covered peril can usually be found somewhere in the chain of causation, and to apply the concurrent causation analysis would effectively nullify all exclusions in an all-risk policy.” Sebo, 141 So. 3d at 201 (citing Garvey, 770 P. 2d at 705). Accordingly, the Second District reversed and remanded the case for a new trial. Id.

To determine whether coverage exists under Sebo's policy, we begin with the language of the policy. It is undisputed that Sebo's all-risk policy included the following exclusion:

The following exclusions apply to the Part II-PROPERTY section of your policy

. . . .

8. Faulty, Inadequate or Defective Planning

We do not cover any loss caused by faulty, inadequate or defective:

a. Planning, zoning, development, surveying, siting;

b. Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;

c. Materials used in repair, construction, renovation or remodeling; or

d. Maintenance;

of part or all of any property whether on or off the residence.

Policy, Part II -- Property, D. Exclusions, 8., Page 8.

Also not in dispute is that the rainwater and hurricane winds combined with the defective construction to cause the damage to Sebo's property. As in Partridge, there is no reasonable way to distinguish the proximate cause of Sebo's property loss -- the rain and construction defects acted in concert to create the destruction of Sebo's home. As such, it would not be feasible to apply the EPC doctrine because no efficient cause can be determined. As stated in Wallach, “[w]here weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Wallach, 527 So. 2d at 1388. Furthermore, we disagree with the Second District's statement that the CCD nullifies all exclusionary language and note that AHAC explicitly wrote other sections of Sebo's policy to avoid applying the CCD. Because AHAC did not explicitly avoid applying the CCD, we find that the plain language of the policy does not preclude recovery in this case.

Last, AHAC argues that the trial court erred by prohibiting the introduction of the amount of the settlements Sebo received in connection with this case. The trial court excluded evidence of the settlements based on this Court's decision in Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009). The Second District did not rule on this issue because “it is not completely clear whether this is a valued policy law case.” Sebo, 141 So. 3d at 203. The court therefore left this question to be resolved at retrial, noting that the 2005 version of the statute applied. Id. We disagree with the trial court's determination that Saleeby precluded AHAC from presenting the settlement amounts to offset the judgment.

Saleeby held that section 768.041, Florida Statutes, which bars disclosure to the jury of settlement or dismissal of a joint tortfeasor, and section 90.408, which bars the disclosure of evidence of an offer to compromise to prove liability, are clear and unambiguous. We held that “[n]o evidence of settlement is admissible at trial on the issue of liability.” Saleeby, 3 So. 3d at 1083. Nothing in our decision affects the ability of a trial court to consider the amount of settlements as a post-judgment offset. We remand for reconsideration of this issue.

For the foregoing reasons, we quash the Second District's opinion below and remand for further proceedings consistent with this opinion.

It is so ordered. (LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. CANADY, J., concurs in result. POLSTON, J., dissents with an opinion.)

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1We mention California caselaw because Florida courts have looked to California decisions on insurance matters involving the EPC.

2We note that the abrogation of the CCD was not properly before the Second District to consider. AHAC never specifically argued that the CCD should be abrogated and replaced with the EPC in Florida trial or in its brief on appeal to the Second District. In its order granting partial summary judgment for Sebo, the trial court found that “Florida recognizes the Doctrine of Concurrent Causation” and that the doctrine “applies to all-risk policies.” The trial court further found that the causes of loss “are not ‘dependent' as that term is understood under” the doctrine. After this adverse ruling, it does not appear that AHAC raised the issue again. Likewise, the focus of AHAC's argument on appeal to the Second District was the improper application of the CCD based on the dependent nature of the perils. Accordingly, the argument was not preserved, and the Second District improperly decided an issue that was not raised.

__________________

(POLSTON, J., dissenting.) As the majority explains in footnote 2, the issue decided by the Second District and then by this Court, whether to apply the efficient proximate cause doctrine instead of the concurring cause doctrine, was not raised by the parties before the trial court or the Second District. Accordingly, the Second District should not have decided this issue. See Pagan v. State, 29 So. 3d 938, 957 (Fla. 2009) (stating that the “purpose of an appellate brief is to present arguments in support of the points on appeal” and failing to do so will mean that such claims are “deemed to have been waived” (quoting Duest v. Dugger, 555 So. 2d 849, 852 (Fla.1990))); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959) (“An assigned error will be deemed to have been abandoned when it is completely omitted from the [appellate] briefs.”); see also Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“[G]enerally, if a claim is not raised in the trial court, it will not be considered on appeal.” (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999))). Therefore, I would quash and remand for the Second District to consider the issue raised by the parties, and I would not reach the merits of the issue decided by this Court.

I respectfully dissent.

* * *


 

Thursday, November 17, 2016

Insurance -- Venue -- Actions against insurance company for bad faith failure to settle and against company's attorney for legal malpractice


41 Fla. L. Weekly D2539aop of Form

Insurance -- Venue -- Actions against insurance company for bad faith failure to settle and against company's attorney for legal malpractice -- Order denying motion to sever or bifurcate counts is not an appealable non-final order -- Venue was proper in county where one of defendants resided -- Trial court did not abuse discretion in denying motion to transfer venue for forum non conveniens

HARTFORD FIRE INSURANCE COMPANY, a Corporation, Appellant, v. LORAN LEROY SMITH; WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP; and MICHAEL D. LOGAN, ESQUIRE, Appellees. 4th District. Case No. 4D16-498. November 9, 2016. Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 502015CA003461XXXXMB. Counsel: Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, and Suzanne M. Lehner of Hamilton Miller & Birthisel, LLP, Tampa, for appellant. Bard D. Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach, and Fred A. Cunningham of Domnick, Cunningham & Whalen, P.L., Palm Beach Gardens, for appellee Loran Leroy Smith.

(PER CURIAM.) Hartford Fire Insurance Company (Hartford) appeals a trial court order denying its motion to bifurcate or sever two counts of a complaint against it, motion to dismiss for improper joinder and/or venue, and, alternatively, motion to transfer venue for forum non conveniens. We dismiss the appeal as to that portion of the order denying the motion to bifurcate or sever for lack of jurisdiction, and otherwise affirm.

The case arose from a multi-vehicle accident in 2012 involving a semi-truck owned by O & L Transport and driven by Loran Leroy Smith. Smith was transporting cargo for Peninsula Logistics, Inc. (Peninsula). Peninsula was insured by Hartford with single limit liability coverage of one million dollars for any one accident or loss. The accident resulted in the death of Frederick Wood and severe injuries to Kevin Erb.

The Erbs sued Peninsula, driver Smith, and others in Osceola County Circuit Court. The personal representative of the Estate of Frederick Wood (estate) later sued Erb, Peninsula, Smith, and others in Polk County Circuit Court.

Hartford retained Wilson Elser Moskowitz Edelman & Dicker LLP (law firm) to represent its insureds, Peninsula and driver Smith. Attorney Logan, who worked at the law firm's Palm Beach County offices, represented Hartford. At mediation, Hartford settled with the estate and agreed to pay it the policy limit of one million dollars, to the exclusion of other claimants. Hartford, however, continued funding the defense of its insureds Peninsula and Smith.

The Erb lawsuit resulted in adverse judgments which Peninsula and Smith appealed. The Fifth District Court of Appeal affirmed as to the judgment against Smith but reversed and remanded for entry of a judgment in favor of Peninsula. Peninsula Logistics, Inc. v. Erb, 159 So. 3d 301 (Fla. 5th DCA 2015). Id. at 302. It noted that Smith was an independent contractor when the accident occurred. Because Peninsula was not the owner or driver of the truck driven by Smith, was not Smith's employer, and had no legal right to operate the truck or assign any such right to Smith, it could not be held vicariously liable for Smith's negligence as driver under section 316.302(1)(b), Florida Statutes (2011). Id.

Hartford had earlier filed a declaratory judgment action in federal court, seeking a ruling that it had no duty to defend or indemnify Peninsula and Smith in connection with the Erb case. That court entered declaratory judgment in favor of Hartford but excluded any claim against the insurer for bad faith in settling the estate's claim for the policy limits and excluding others.

Smith sued Hartford in Palm Beach County Circuit Court for bad faith, and included as defendants Attorney Logan and the law firm. In count one he claimed that Hartford had acted in bad faith in failing to settle the claims of the estate and Erbs within its policy limit. In count two, he claimed Attorney Logan and the law firm committed legal malpractice by failing to advise Hartford that they needed time to initiate settlement negotiations with both claimants.

Hartford moved to bifurcate or sever the two counts and, in the alternative, to dismiss the complaint for improper joinder of parties. It also moved to transfer venue for forum non conveniens, or dismiss the complaint for improper venue. Hartford claimed venue did not lie in Palm Beach County and that the action should be brought in Osceola County, where the Erb lawsuit was filed, or in Polk County, where Smith resided. Alternatively, Hartford argued Palm Beach County was an inconvenient forum given the location of potential witnesses. The trial court held a hearing on the motion and denied relief on all grounds asserted. As noted above, the trial court denied all of these motions.

We dismiss the appeal of that portion of the order which denied Hartford's motion to sever or bifurcate as it is not an appealable non-final order recognized in Florida Rule of Appellate Procedure 9.130. This motion was not based on venue or any other ground for which a party may appeal. While other portions of the order did concern venue and were appealable, jurisdiction does not extend to this portion of the order on bifurcation and severance. See Sch. Bd. of Broward Cty. v. City of Coral Springs, 187 So. 3d 287, 288 n.1 (Fla. 4th DCA 2016).

Certiorari does not lie because Hartford has not demonstrated irreparable harm caused by the denial of severance or bifurcation. See Smithers v. Smithers, 743 So. 2d 605, 606 (Fla. 4th DCA 1999) (dismissing petition for certiorari review of order denying husband's motion to bifurcate issue of count to annul marriage and try that count first because husband failed to demonstrate irreparable harm).

We affirm on the remaining venue issues, which are appealable. See Fla. R. App. P. 9.130(a)(3)(A). A plaintiff's venue selection is presumed to be correct and will not be disturbed on appeal “as long as that selection is one of the statutory alternatives . . . .” Intercapital Funding Corp. v. Gisclair, 683 So. 2d 530, 532 (Fla. 4th DCA 1996) (quoting Oliver v. Severance, 542 So. 2d 408, 409 (Fla. 1st DCA 1989)).

When a party seeks to transfer or dismiss for improper venue under section 47.011, Florida Statutes (2015), the trial court's legal conclusions on venue are reviewed de novo. McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So. 3d 504, 508 (Fla. 4th DCA 2010). By contrast, a trial court's ruling on a motion to transfer venue for convenience of the parties is reviewed for abuse of discretion. Id.

Several venue statutes must be considered here. Section 47.011, Florida Statutes (2015) provides that a civil action “shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” Where multiple defendants reside in different counties, an action may be brought “in any county in which any defendant resides.” § 47.021, Fla. Stat. (2015). Section 47.041, Florida Statutes (2015) provides that “[a]ctions on several causes of action may be brought in any county where any of the causes of action arose. When two or more causes of action joined arose in different counties, venue may be laid in any of such counties, but the court may order separate trials if expedient.” Finally, section 47.051, Florida Statutes (2015) provides that actions against foreign corporations doing business in Florida shall be brought “in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”

Smith's amended complaint alleged that Hartford was a foreign corporation registered to do business in Florida, and that the defendant law firm it hired represented clients in Florida and had an office in Palm Beach County. He further alleged that defendant Attorney Logan was an employee of that law firm, and that he was admitted to practice and was practicing law in Palm Beach County. Hartford expressly recognized in its motion to transfer venue that defendant Attorney Logan resided in Palm Beach County. It did not contest or question Logan's place of residence in the trial court.

Attorney Logan is a defendant and witness in this case on both counts. His residence alone would support venue in Palm Beach County. If venue lies in Palm Beach County for any of the counts asserted, it will lie for the others, as provided by section 47.041, Florida Statutes (2015). To the extent Hartford argues on appeal that Attorney Logan does not reside in Palm Beach County, it failed to preserve this claim by raising it below.

We further conclude that the trial court did not abuse its discretion in denying the motion to transfer for convenience. Section 47.122, Florida Statutes (2015), provides as follows and frames the trial court's analysis of that motion:

For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.

Hartford noted that several witnesses for Smith are located in counties outside of Palm Beach. However, it did not demonstrate that Smith actually intended to call them at trial. Further, Hartford failed to indicate the significance of their testimony or show how any of them would be inconvenienced by having to travel to Palm Beach County to testify. Absent such a showing, a trial court's denial of a motion to transfer for convenience will be affirmed. R.C. Storage One, Inc. v. Strand Realty, Inc., 714 So. 2d 634, 636 (Fla. 4th DCA 1998).

Affirmed in part and dismissed in part. (CIKLIN, C.J., CONNER and FORST, JJ., concur.)