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Compiled by Don Freeman, FJA Legislative Analyst

PORT CHARLOTTE HMA, LLC, d/b/a PEACE RIVER REGIONAL MEDICAL CENTER, v. IALA SUAREZ, individually, and as Parent and Natural Guardian of K.D.P., a minor

Opinion from Second DCA filed October 26, 2016.

  1. Statutory Cap on Noneconomic Damages

In denying Peace River’s request to apply the statutory cap for noneconomic damages provided for in section 766.118(3), the trial court relied on North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015), review granted, No. SC15-1858. On appeal, Peace River contends that the statute is constitutional and that the Fourth District in Kalitan improperly extended the supreme court’s holding in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), to personal injury medical malpractice cases.

Held: the trial court properly relied on Kalitan in denying Peace River’s motion to apply the statutory cap on noneconomic damages, as the opinion in Kalitan was the only district court opinion on the issue and was thus binding precedent.  “Further, we conclude that the Kalitan court properly applied the McCall holding to personal injury medical malpractice actions and we agree with the Fourth District on this issue.”

  1. Setoff Against Economic Damages

In granting Peace River’s motion for setoff, the trial court relied on section 768.81(3), Florida Statutes (2010), and D’Angelo v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003). On cross-appeal, Suarez argues that because the legislature eliminated joint and several liability for economic damages after the D’Angelo decision, Peace River is responsible for the damages that correspond to its percentage of fault and Peace River is not entitled to a setoff based on a settlement Suarez reached with another defendant.

APPORTIONMENT OF DAMAGES. — In 2006, the Florida Legislature amended section 768.81(3) and specifically deleted the provision applying joint and several liability to economic damages. The current version of this subsection now reads: “[T]he court shall enter judgment against each party on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § Therefore, the holding in D’Angelo, which was based on specific language authorizing a setoff against economic damages on the basis of joint and several liability, does not apply in this case, and the trial court erred in applying a setoff to the economic damages awarded against Peace River.

Affirmed in part; reversed in part; remanded.


Opinion from Third DCA filed October 26, 2016.

Allstate issued a personal automobile policy to Hradecky. On November 19, 2014, Hradecky received an Amended Policy Endorsement. Of relevance to this appeal, the address for Hradecky listed on the Policy Declarations page was 177 McKenzie Road, Clinton, Pennsylvania.

On December 3, 2014, Hradecky’s motor vehicle was rear-ended by a vehicle driven by an officer of the Monroe County Sheriff’s Office. At the time of the accident, Hradecky’s vehicle was covered by the Policy and its Endorsement.

Hradecky subsequently filed suit alleging two counts: Count I for Negligence against Rick Ramsay, as Sheriff of Monroe County, Florida; and Count II for Negligence against Allstate.

Allstate filed a Motion to Dismiss Count II of Plaintiff’s Amended Complaint, arguing that dismissal was required based on the following mandatory forum selection clause contained in the Endorsement titled “Pennsylvania Auto Amendatory Endorsement.” The relevant portion read:

If We Cannot Agree

If the insured person and we do not agree on that person’s right to receive damages or on the amount, then upon mutual consent, the disagreement will be settled by arbitration. Unless you and we agree otherwise, arbitration will take place in the county in which your address shown on the Policy Declarations is located. If the insured person and we do not agree to arbitrate, then the disagreement will be resolved in a court of competent jurisdiction. Any and all lawsuits related in any way to this coverage shall be brought, heard, and decided in the county in which your address shown on the Policy Declarations is located.

(emphasis in original).

In its Motion, Allstate asserted that Monroe County, Florida was an improper venue for Hradecky’s UM claim and that, based on Hradecky’s address listed on his Policy Declarations page, the Endorsement’s forum selection clause required Hradecky to bring suit in Allegheny County, Pennsylvania.

In response at the hearing, Hradecky argued that “it would be judicially uneconomical” to litigate his UM claim in Pennsylvania while continuing to litigate his negligence claim against the sheriff’s office in Florida. Hradecky further argued that because the Endorsement conflicted with the venue clause in the Policy, the provision which provided greater coverage prevailed.

Held: The Endorsement’s forum selection clause states: “Any and all lawsuits related in any way to this coverage shall be brought, heard, and decided in the county in which your address shown on the Policy Declarations is located.” (emphasis in original). Because the clause at issue specifically provides that litigation “shall be brought, heard, and decided” in a specified forum (in this case, the county for the address shown on Hradecky’s Policy Declarations page), the clause is mandatory.  (finding that use of the word “shall” in the documents is “indicative of a mandatory provision rather than one that is permissive”).

Absent a showing that a mandatory forum selection clause is unreasonable or unjust, a trial court must enforce the clause. See Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986); see also Farmers Group, Inc. v. Madio & Co., Inc., 869 So. 2d 581, 582 (Fla. 4th DCA 2004).

It is not enough to show that litigation in the forum would result in additional expense or inconvenience. Instead, a party challenging a mandatory forum selection clause as unreasonable or unjust must establish that trial of this case outside of Florida would be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. See Manrique, 493 So. 2d at 440 n.4; see also Farmers, 869 So. 2d at 583.

Absent findings or record evidence establishing unreasonableness or unjustness of the forum selection clause, we cannot find that the clause at issue is invalid. See Taurus Stornoway Invs., LLC v. Kerley, 38 So. 3d 840, 843 (Fla. 1st DCA 2010) (finding forum selection clause valid absent any argument or record evidence establishing an unreasonable or unjust result).

Reversed and remanded.


Opinion from the Fifth DCA filed October 28, 2016.

In this foreclosure action, Appellants argued, and court agreed, that the trial court erred in admitting a screenshot of a document referred to as an “LNTH” into evidence over their hearsay objection, as the foundation for the business records exception was not established. Because the erroneously admitted LNTH document was the only evidence of Appellee’s standing to sue, case was reversed.

When Appellants defaulted on the mortgage, Appellee allegedly returned the original note to SunTrust. Typically, SunTrust would have sent the note to trial counsel to commence foreclosure proceedings. However, the note was lost before it reached trial counsel. Ms. Allen testified that the loss of the note occurred in May 2012, but she did not know any specifics of how the note was lost. Appellee’s foreclosure complaint included a count to reestablish the lost note and mortgage.

Ms. Allen’s testimony that SunTrust sold Appellants’ loan to Appellee was not based on personal knowledge. Instead, she relied entirely upon a screen shot of a computer-generated document referred to as a Loan Transfer History (“LNTH”) that, in pertinent parts, identifies Appellant Rhonda Miller as the borrower and states “05/22/06 SALE TO BANK OF AMERICA.” Ms. Allen testified that she did not know who entered that information or whether it was entirely computer generated. She indicated that she was certain that other documents showed Appellants’ loan was transferred to Appellee, but she did not have such documents with her. Appellant Rhonda Miller testified that neither she nor her husband, Edward Miller, received notification that the loan was sold or transferred to Appellee.

Ms. Allen’s affirmative answers to the business record foundation questions do not overcome her demonstrated lack of knowledge about the creation, accuracy, or trustworthiness of the LNTH document. See Yang v. Sebastian Lakes Condo. Ass’n, Inc., 123 So. 3d 617, 621 (Fla. 4th DCA 2013) (holding that the witness failed to establish the foundation for the business records exception even though she “employed all of the ‘magic words’ ”). Thus, the trial court erred in admitting the LNTH screenshot into evidence.

Reversed and remanded.


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