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Sudden and Unexpected Loss of Consciousness as
Affirmative Defense to Negligence By Thom Glasson
It has long been the law in Florida that where an operator of an automobile unexpectedly loses consciousness or becomes incapacitated he is not chargeable with negligence as a result of his loss of control, nor is it even simple negligence if one has a sudden attack, loses control of his car and causes an accident if he had no premonition or warning. Bridges v. Spear, 79 So. 2d 679 (Fla. 1955).
In a recent 5th DCA decision in Abreu v. F.E. Development Recycling, Inc., et al., Case No. 5D09-826 (May 7, 2010), the Court found that while the traditional rule as set forth above makes for good law, the trial court in this case was mistaken in granting Summary Judgment due to the fact that genuine issues of material fact existed as to whether the Defendant's loss of consciousness in this case was sudden and foreseeable.
 Certain testimony was submitted by means of an affidavit from a physician expert stating that it would have been impossible for the Defendant to know prior to the accident that he had an intracranial aneurysm, which all parties agreed caused his loss of consciousness and the accident.
The Court based its reversal, however, on the fact that medical records were presented in opposition to the Motion for Summary Judgment which described the Defendant as a "severe vasculopath who was not getting proper medical care".
In fact, additional medical records indicated that on the day of the accident the Defendant had been experiencing a headache for several hours prior to losing consciousness, that his head was spinning, that he had blurry vision and felt as though he was going to pass out.
The Court found that this provided sufficient question of fact as to whether or not the loss of consciousness was foreseeable and, therefore, Summary Judgment should not have been granted. |
Protecting the Claim File in Discovery: PIP Cases and Privilege Logs
By Scott Danner, Esq.
On May 20, 2010, Judge David Krathen of the 17th Judicial Circuit, Broward County, Florida, heard argument in the case of State Farm Fire and Casualty Company v. North Lauderdale Chiropractic Center, Inc. (a/a/o Carline Simon), Case No. CACE 09-064929 (09). Sitting in its appellate capacity, the Court ruled on a number of issues including a request  for the production of the claim file, underwriting standards, underwriting manuals, adjuster's notes and various other documents.
State Farm objected to the production of these items and provided a privilege log describing the documents for which it sought protection. The lower court had a hearing and performed an in camera inspection and determined that the various documents were not entitled to work product protection and ordered them produced, stating that the documents were prepared under no more than the "likelihood of litigation."
State Farm sought certiorari relief from the 17th Judicial Circuit and the Court quashed the lower court's order. First, the Court indicated that the lower court completely failed to consider State Farm's attorney-client privilege objection before it ruled. Second, Judge Krathen ruled that the lower court failed to rule properly on the work product objection, stating that Florida recognizes two types of work product privilege: (1) fact work product, which is only discoverable "upon a showing of need and undue hardship; and (2) opinion work product, which is not discoverable under any circumstances.
Rule of Civil Procedure 1.280(3) states that a "showing that the party seeking discovery has need of the material in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means."
In this case, the Court stated that the lower court filed to adhere to the well-settled standards because it concluded that State Farm's documents, including those contained within the claim file, were not any type of work product.
Judge Krathen stated that the claim file notes and other internal documents listed on its privilege log are squarely within the protection recognized by the current case law and were prepared as part of its claim handling process. The Court runs through the gamut of case law from the Florida Supreme Court as well as several of the DCAs which have repeatedly held that the production of these documents are "irrelevant to a first party dispute."
Finally, the Court stated that at the time the documents were prepared, there was of necessity a claim to be handled, because a demand had been made. And it is unquestionably foreseeable in Florida that any claim that does not result in an insurer paying 100% of the demand will result in litigation. |
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Court Reverses Itself on Duty of Assignee to Submit to EUO in PIP Case
By Ethan Abramowitz, Esq.
The 5th DCA elected to reconsider its October 23, 2009 opinion in Shaw v. State Farm. The Court withdrew the prior panel's opinion, issuing an opinion disaffirming the right of an insurance carrier to investigate a claim by taking the Examination Under Oath of an assignee who is seeking benefits under the PIP provisions of a policy.
In the present case, the medical provider, Shaw, was the assignee of the right of the insured's benefits under the subject policy of insurance. The insured assigned all benefits due and owing under the applicable policy of insurance. State Farm's policy required "any person or organization making claim or seeking payment...must, at our option, submit to an examination under oath, provide a statement under oath... as reasonably often as we require." The medical provider failed to appear for an EUO pre-suit, and State Farm denied the claim based on the policy language.
While the prior court held that a medical provider was bound by the policy language, the present court precluded the unilateral attachment of a condition to an assignee to any performance under a contract unless the assignee agreed. The court held under Florida law, an assignment of a contract right does not entail the transfer of any duty to the assignee, unless the assignee assents to assume the duty. The court went on to state that the assignment of a right to payment under a contract does not eliminate the duty of compliance with contract conditions, but a third-party assignee is not liable for performance of any duty under a contract, unless he was a party to the agreement or has become a party by subsequent agreement. Absent such an event, which is in the nature of a novation, the duty of performance of the conditions to the right of payment remains with the assignor.
The 5th DCA reversed its prior position, holding that an assignee medical provider cannot be unilaterally bound to the conditions of an insurance contract unless the medical provider consents to the same. The assignment in the Shaw case was a straightforward transfer of the right to receive payment that contained no language of assumption of any duty by the assignee provider. Accordingly, the court held that the medical provider was not subject to the EUO provision of the insurance policy.
Worth noting is the fact that the en banc decision was not unanimous and the court certified to the Florida Supreme court the following question:
Whether a health care provider who accepts an assignment of no-fault insurance proceeds in payment of services provided to an insured can be required by a provision in the policy to submit to an examination under oath as a condition to the right of payment?
David Shaw v. State Farm Fire and Casualty Company, et. al., 35 Fla. L. Weekly D1020 (May 7, 2010).
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Attorney Spotlight
Rory Biggins, an associate in the firm's Fort Lauderdale office, was admitted to the Florida Bar in 2007. Rory received a Bachelor of Arts in Political Science with Minors in History and English from Saint Vincent College in Latrobe, Pennsylvania. He worked for K&S as a law clerk while attending the Shepard Broad Law Center at Nova Southeastern University and received his J.D. in 2007.
Rory has gained substantial experience and has successfully litigated PIP, BI/UM, and homeowners cases for multiple state-wide and national carriers.
He is a member of the American Bar Association and received Gold Honors in the Pro Bono Honors Program at the Shepard Broad Law Center for completing over 300 hours of community service during his law school tenure. |
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Kirwan & Spellacy is a full-service defense litigation firm serving the diverse needs of the insurance and business community throughout Florida.
Practice Areas include:
Automobile Liability/ Uninsured Motorist
Commercial Premises & General Liability
Liability Claims
Personal Injury Protection
Special Investigative Unit/Fraud
Subrogation
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Education
Kirwan & Spellacy provides state-certified continuing education and seminars on relevant topics as a courtesy to our clients.
Course offerings include:
Proposals for Settlement: Changes & Fundamentals
Effective Use of Florida Statute 57.105
Fighting Fraud: Use of Investigative Techniques in Claims Handling and Litigation |
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Locations
Fort Lauderdale
888 S.E. 3rd Avenue
Suite 301
Fort Lauderdale, FL 33316
(954) 463-3008
Miami
19 West Flagler Street
Suite 1100
Miami, FL 33130
(786) 275-3140
Jupiter
275 Toney Penna Drive
Suite 1, Jupiter, FL 33458
(561) 615-0333
Winter Haven
595 Cypress Gardens Blvd., Suite 320
Winter Haven, FL 33880 (863) 508-1684
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Contact Shawn Spellacy directly.
Email or telephone 954.463.3008.
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