Filing a motion to enlarge time will not automatically toll the time to accept a proposal for settlement.

On Thursday, the Florida Supreme Court resolved a conflict between the district courts of appeal and held that the mere filing of a motion to enlarge time under Florida Rule of Civil Procedure 1.090(b) does not toll the time to accept the proposal.  Koppel v. Ochoa, No. SC16-1474 (Fla. May 17, 2018)

It’s important to note what this opinion does not hold.  The opinion does not hold motions to enlarge time to accept proposals for settlement are improper.  To the contrary, the opinion states, “Rule 1.090 allows for the time period set forth in rule 1.442 to be enlarged, but this enlargement is at the trial court’s discretion if the motion was filed before expiration of the time period and cause has been shown.”  Even after the time period to accept the offer has expired, a court may enlarge it if excusable neglect and good cause are shown.

But a favorable ruling on the motion to enlarge time is necessary.  So in Koppel, the party receiving the proposal could not automatically toll the time for acceptance by filing a motion to enlarge time and then accept the proposal before the trial court ruled on its enlargement motion–under circumstances in which the trial court actually denied the motion to enlarge time.

The take-away:  If you want to extend the time to consider a proposal for settlement, move to enlarge the time quickly and try to obtain a ruling before the time period expires.

Certiorari Proceedings Do Not Divest a Trial Court of Jurisdiction

It’s a common misconception that certiorari proceedings in an appellate court affect the lower court’s jurisdiction much like an appeal does.  In fact, they have no effect on the lower court’s jurisdiction.

Florida Rule of Appellate Procedure 9.600 describes the general rules regarding what jurisdiction the lower tribunal retains once an appeal is filed.  But certiorari is an original proceeding–not an appeal–so this rule does not apply.

That the filing of a petition for certiorari has no effect on the lower tribunal’s jurisdiction is best captured in this quote from a Second District decision:

Certiorari is an original proceeding in this court. See Fla. R. App. P. 9.030(b)(3). It has no effect on the jurisdiction of the circuit court unless a stay of the proceedings is granted. Although Florida Rule of Appellate Procedure 9.130(f) specifically prohibits the circuit court’s entry of a final judgment during the appeal of a nonfinal order, no similar rule exists when a nonfinal order is challenged by way of certiorari.

Curry v. State, 880 So. 2d 751, 755-56 (Fla. 2d DCA 2004).

Can the trial court decide to stay a case if a party seeks certiorari review of a nonfinal order?  That would be within the trial court’s discretion in managing the case.  But the trial court is free to proceed, even to the entry of a final judgment that could moot the certiorari proceeding entirely.

Jury Instructions & Verdict Forms

Jury instructions and verdict forms are often hurriedly put together in the middle of trial, when an attorney has 100 other things on the mind.  And yet, these documents are critical to success at trial.  They are the entire framework within which the jury must work to render its verdict.  On Wednesday, the Hillsborough County Bar Association’s Trial & Litigation Section presented a CLE on these key components at trial.  The advice that ran through all three presentations:  Prepare your draft instructions and verdict form early and revisit them throughout trial.  Here’s a few other points from the CLE:

  • Mark your proposed instructions and verdict form and make sure they are filed in the court record.
  • Keep the charge conference “on the record.”
  • If you propose a special jury instruction, do not overreach.  The trial court is only compelled to give that instruction if it is:
    • An accurate statement of the law;
    • Supported by the facts of the case;
    • Necessary for the jury to properly resolve the issues; and
    • Not covered in the other instructions given to the jury.
  • If a case has multiple claims or defenses, a special interrogatory verdict may be key.  But read it carefully, aloud even, to ensure the jury will be able to follow it.
  • In civil cases, failing to properly preserve issues regarding the jury instructions or verdict form will almost always be fatal to any appeal.
  • In criminal cases, some errors in instructions or verdict forms will be considered fundamental (assuming there was no possible strategic reason for the defendant to invite or stay silent about the error).

Special thanks to co-presenters Hon. Matthew Lucas, Hon. Nelly Khouzam, and Jessica Goodwin Costello.

Collateral Source Setoffs

collateral source picThis past week, I presented a webinar on collateral source setoffs.  The law in this area is a hopelessly confusing collection of statutes and case law that lacks consistency in theory and in application.  Because setoffs can have an immense impact on a plaintiff’s recovery, it’s critical to know what law applies.

Here are some of the  highlights of the presentation:

  • In Florida, the collateral source rule is a rule of evidence and a rule of damages.  While the common law rule of evidence remains largely intact (and generally prohibits the admission of evidence of collateral sources), the rule on damages has been abrogated by section 768.76, Florida Statutes (2017).
  • Other statutes related to setoffs include section 627.736, Florida Statutes (2017) (regarding personal injury protection (PIP) benefits) and section 627.727, Florida Statutes (2017) (regarding uninsured motorists (UM) coverage).  There is also a separate rule that applies in statutory arbitration for medical malpractice.
  • Until recently, the case law held that to receive the benefit of an offset, the defendant had to prove that the jury’s verdict duplicated the collateral source benefits the plaintiff received, and the extent of the duplication.  But the Fifth District has recently held that once the defendant establishes the plaintiff received collateral source benefits, it is entitled to an offset in the full amount–appearing to shift the burden to the plaintiff to disprove duplication.  See Woudhuizen v. Smith, No. 5D17-575, 2018 WL 665139 *2 (Fla. 5th DCA Feb. 2, 2018).
  • Under section 627.736, PIP is treated differently than other collateral sources.  The statute says the amount paid by PIP cannot be claimed as damages at trial.  Absent agreement, it is not an offset after trial.  PIP is subtracted from the economic damages before compartive fault is taken into account.
  • Medicare and Medicaid are not considered collateral sources under section 768.76.  But there is a developing dispute over whether the plaintiff’s damages are limited to the amount healthcare providers accepts as full payment under these government programs.
  • Health insurance payments are typical subject to a contractual or equitable right of subrogation and so are not considered collateral sources under section 768.76.  But under Goble v. Frohman, 901 So. 2d 830, 832-33 (Fla. 2005), the amount a healthcare provider reduces its bill based on health insurance contracts or for other reasons is subject to setoff.
  • Social Security Disability is a collateral source setoff.
  • Prior settlements must be setoff if (a) the defendant is vicariously liable for the damages caused by the settling party; or (b) the jury’s verdict covers the same damages the settlement was intended to pay.
  • In UM cases, the UM insurer is typically entitled to setoff the amount paid for PIP and any settlement with the tortfeasor (again, if there is a duplication).

Collateral source setoffs should be considered as part of the overall strategy for trial.  If you are an attorney faced with a difficult collateral source offset issue, please feel free to reach out to me.

The laws you must follow

In a 1961 address before the Fellowship of the Concerned, Martin Luther King, Jr., sought to answer concerns from an interracial group about taking a more gradual approach to fighting segregation and racism.  As part of the address, he acknowledged that the movement posed a question, “[H]ow can you be logically consistent when you advocate obeying some laws and disobeying other laws”?  He sought to distinguish between “a moral obligation to obey just and right laws,” but an obligation to also see that some laws are unjust and to resist them.

How do you tell the difference?  King posed that a just law “squares with a moral right” and “uplifts human personality,” while an unjust law “degrades the human personality” and “does not square with the law of God.”  But King himself seemed uncomfortable with the subjectivity of this test, so he went further.  “[A]n unjust law is a code that the majority inflicts on the minority that is not binding on itself” and so is “difference made legal.”

I’ve struggled with this passage.  There is no doubt that some laws are just, and some are not.  King’s attempt to distinguish between them is as good as any, but still leaves me pondering if there isn’t more to it.  Many laws may be just in some or even most applications, but terribly unjust in another.   And I suspect we all–and perhaps particularly lawyers and judges–trust our instincts to tell the difference.  But can our own instincts be trusted?  Unjust laws have been rationalized throughout time.

How do we create just laws, and avoid the unjust ones?  Or how do we ensure that the just law is not unjustly applied?  As legal professionals–lawyers and judges–how do we react to laws that we may be required to follow or enforce, but that we know to be unjust either in general or in a specific application?