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Cracking the Code Florida’s Senate Bill 408’s Significant Changes

On May 17, 2011, Governor Rick Scott signed Senate Bill 408 (the “Bill”) and significantly changed the landscape of sinkhole claims.  Although prior versions of the Bill sinkhole carriers to offer sinkhole coverage, the final version requires homeowners’ insurers to provide coverage for sinkhole loss.  Fla. Stat. § 627.706(1)(b).  Therefore, insurers cannot ignore the vast amount of amendments by simply nonrenewing sinkhole coverage.  However, insurers can restrict sinkhole loss coverage to the principal building as defined in the policy.  Fla. Stat. § 627.706(1)(c).  The Bill specifically attempts to address insurers’ concerns regarding insuring sinkhole loss in Florida, including the issues associated with defining the minimal nature of the damage required for coverage, and partially amending some of the Neutral Evaluation procedures.  This article analyzes pertinent portions of the Bill and assesses its impact on the current landscape of sinkhole litigation.

The “Structural Damage” Definition

In the Bill, sinkhole loss is only verified if a professional engineer or geologist issues a written report and certification stating that, among other things, “structural damage to the covered building has been identified within a reasonable professional probability,” and “the cause of the structural damage is sinkhole activity within a reasonable professional probability.”  Fla. Stat. § 627.7073(1)(a)(1-2) (emphasis added).  The following provisions of Fla. Stat. § 627.7076(1), in pertinent part, clarify the terms “structural damage”:

(2) As used in ss. 627.706-627.7074, and as used in connection with any policy providing coverage for a catastrophic ground cover collapse or for sinkhole losses, the term:

* * *

(d) “Primary structural member” means a structural element designed to provide support and stability for the vertical or lateral loads of the overall structure.

(e) “Primary structural system” means an assemblage of primary structural members.

* * *

(k) “Structural damage” means a covered building, regardless of the date of its construction, has experienced the following:

1. Interior floor displacement or deflection in excess of acceptable variances as defined in ACI 117-90 of the Florida Building Code, which results in settlement related damage to the interior such that the interior building structure or members become unfit for service or represents a safety hazard as defined within the Florida Building Code;

2. Foundation displacement or deflection in excess of acceptable variances as defined in ACI 318-95 or the Florida Building Code, which results in settlement related damage to the primary structural members or systems from supporting the loads and forces they were designed to support to the extent that stresses in those primary structural members or primary structural systems exceeds one and one-third the nominal strength allowed under the Florida Building Code for new buildings of similar structure, purpose, or location;

3. Damage that results in listing, leaning, or buckling of the exterior load bearing walls or other vertical primary structural members to such an extent that a plumb line passing through the center of gravity does not fall inside the middle one-third of the base as defined within the Florida Building Code;

4. Damage that results in the building, or any portion of the building containing primary structural members or primary structural systems, being significantly likely to imminently collapse because of the movement or instability of the ground within the influence zone of the supporting ground within the sheer plane necessary for the purpose of supporting such building as defined with the Florida Building Code; or

5. Damage occurring on or after October 15, 2005, that qualifies for “substantial structural damage” as defined in the Florida Building Code. (emphasis added).

As discussed below, this definition provides the foundation for some of the more significant changes in how Florida requires insurers to investigate sinkhole claims.  Ultimately, the applicability of this provision will hinge on insurers’ particular policy language and the outcome of insureds’ potential arguments related to waiver, ambiguity, and retrospective application of the statute.  By using language such as “physical damage” rather than structural damage, many insurers’ sinkhole provisions provide greater coverage than the Bill requires.  Accordingly, until insurers revise their policies to mirror the Bill, Plaintiffs’ attorneys will argue the “structural damage” portions of the Bill are irrelevant to these policies.  With time, however, the Bill’s clarification of “structural damage” should provide insurers relief against the previously unsettled definition.

Neutral Evaluation

The Bill includes substantial changes and clarifications to the Neutral Evaluation procedure.  Prior to the Bill, when the parties initiated the process, they each had three strikes to attempt to obtain the neutral evaluator of their preference.  In addition, the Neutral Evaluation process was limited to determining causation and the subsurface stabilization repair protocol.  As noted below, the Bill attempts to expedite Neutral Evaluation as well as provide the process with a more comprehensive reach.

Regarding the timing issue, Fla. Stat. § 627.7074(7)(b) provides that, if the parties cannot agree to a neutral evaluator in 14 days, the department will appoint a neutral evaluator.  In addition, (7)(b) limits the parties’ strikes “without cause” to 2.  Furthermore, rather than the prior language arguably requiring the neutral evaluation to occur within 45 days of the request, Fla. Stat. § 627.7074(7)(c) provides “[t]he neutral evaluator shall make reasonable efforts to hold the conference within 90 days after the receipt of the request by the department.”  Further, “[f]ailure of the neutral evaluator to hold the conference within 90 days does not invalidate either party’s right to neutral evaluation or to a neutral evaluation conference held outside this timeframe.”  “Regardless of when noticed,” any court proceeding is stayed until 5 days after the filing of the neutral evaluator’s report with the court.  Fla. Stat. § 627.7074(10).  Ultimately, the legislature appears to be clarifying the scheduling issues associated with Neutral Evaluation to avoid insureds’ attempts to avoid later submissions based solely on timing technicalities.

The Bill also allows Neutral Evaluation to stretch across all repair components of a sinkhole loss claim.  Fla. Stat. § 627.7074(2) adds above ground repairs as a component the neutral evaluator must determine.  In addition, the neutral evaluator must determine whether sinkhole activity caused “structural damage” under the clarified definition discussed below.  Fla. Stat. § 627.7074(12).  The legislature also provided the neutral evaluator’s report and testimony shall be admitted in any subsequent action, including litigation.  Overall, it appears the Legislature has added a more comprehensive approach to neutral evaluation and clarified how it should be applied in litigation.

Investigating and Providing

Coverage For Sinkhole Claims

The Bill provides a new time limitation for filing sinkhole claims.  Pursuant to Fla. Stat. § 627.706, insureds must report sinkhole claims “within 2 years after the policyholder knew or reasonably should have known about the sinkhole loss.”  Fla. Stat. § 627.706(5).  For existing claims, insurers can anticipate that insureds and their representatives will argue this limitation is not consistent with the policy’s requirement for “prompt notice.”  Accordingly, until policies have been renewed to mirror this language, this provision might not have much significance as it could be construed as providing a different standard than the policy.  In addition, the “reasonably should have known” language will be difficult to define considering most reported sinkhole claims result in engineers finding multiple causes of damage.  Nevertheless, to some extent, the ultimate aim of this provision is to allow insurers to restrict insureds from backdating their sinkhole claims.

Under Fla. Stat. § 627.707, the legislature altered insurers’ minimum obligations with respect to handling sinkhole claims.1 Unlike under the previous version of the statute, when appropriate the insurer can deny a claim without conducting full sinkhole testing.  Fla. Stat. § 627.707(1) requires insurers to inspect the property to determine if there is structural damage that “may be the result of sinkhole activity.”  If not, the insurer may be able to deny the claim.  However, if the insurer confirms structural damage exists but cannot identify a cause of the damage other than potential sinkhole activity, the insurer must conduct the full sinkhole testing previously provided for in Fla. Stat. § 627.707.  See Fla. Stat. § 627.707(2).

If the insured has sinkhole coverage and the insurer denies the claim without performing the full sinkhole testing, then the insured can demand full sinkhole testing.  Fla. Stat. § 627.707(4)(b).  The insured must make this demand in writing less than 61 days after he or she received the denial.  Fla. Stat. § 627.707(4)(b)(1).  Contrary to the statute prior to the Bill, the insured may be held liable for the lesser of 50 percent of the actual costs of the analysis or $2,500.00.  If the engineer or geologist finds sinkhole loss, then the insurer must reimburse the insured for these costs.  Fla. Stat. § 627.707(4)(b)(3).

There are also several changes to the payment requirements indicating the payment and repairs might be required to be based on the insurer’s expert’s report; however, the Bill might need further clarification.  If sinkhole loss is verified, then the insurer “shall pay to stabilize the land and building and repair the foundation in accordance with the recommendations of the professional engineer retained pursuant to subsection (2) … .”  Fla. Stat. § 627.707(5).  This provision now requires this payment to be “with notice to the policyholder,” rather than “in consultation with the policyholder,” as previously provided.  If the property suffers sinkhole loss, the insured “must repair such damage or loss in accordance with the insurer’s professional engineer’s recommended repairs.”  The insurer may withhold its total claims payment, not including any subsurface repairs, until the policyholder enters into a contract for the repairs “in accordance with the recommendations set forth in the insurer’s report issued pursuant to s. 627.7073.”   Fla. Stat. § 627.707(5) (a).  The insured must enter into a contract for stabilization repairs within 90 days after the insurer notifies the insured there is coverage.  Fla. Stat. § 627.707(5)(b).  This time period can be tolled by the neutral evaluation process.  The insured must complete all repairs within 12 months after entering into the contract, unless there is mutual agreement; or the claim is in the process of litigation, neutral evaluation, appraisal, or mediation.  Fla. Stat. § 627.707(5)(d).

Despite all of the text related to repairing the property in accordance with the insurer’s expert’s recommendations, Fla. Stat. § 627.707(5)(c) does not contain any change to the language that, once the contract is executed, “the insurer shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred.”  Accordingly, once payment is required, the limitations on repairing in accordance with the insurer’s expert appear to have vanished.

Other Property Insurance  Amendments

In addition, the Bill included the following amendments, in pertinent part:

Clarifying that the statute of limitations under Fla. Stat. § 95.11 begins to run from the date of loss, rather than the date of the alleged denial or underpayment;

Fla. Stat. § 626.854:

limiting public adjuster’s compensation to 20 percent of the additional payment for reopened or supplemental claims on residential policies;

limiting compensation to 10 percent for claims during the first 12 months of a declared emergency;

defining misleading public adjuster advertising and requiring specific disclaimers in advertisements;

requiring insurers to provide 48 hours notice of inspection to insured or public adjuster before scheduling meetings for the inspections;

requiring the public adjuster to provide prompt notice and documentation to the insurer;

prohibiting insurers from excluding public adjusters from meetings for inspection with the insured;

defining limits on public adjusters’ delay obstruction by requiring them to allow reasonable access;

Fla. Stat. § 626.70132: limiting the time for filing a windstorm or hurricane claim to three years from the date of landfall or date the windstorm caused damage;  and

Fla. Stat. § 627.43141: allowing insurers, with proper notice, to change policy terms at renewal without having to non-renew and reissue a new policy.


Overall, the Bill shows the legislature’s agreement with insurers that sinkhole claims are a serious threat to the stability of the Florida homeowners’ insurance market.  Although the Bill makes several strides towards that end, there remain many issues that will need to be litigated to determine the Bill’s ultimate impact.  The changes to Neutral Evaluation should strengthen the overall impact; however, the limit to two strikes might trouble some insurers.  In addition, the statute of limitations for sinkhole claims requires litigating when the insured “should have known” of potential sinkhole activity, thereby placing a difficult burden on insurers to show the insured could comprehend such a science-based determination.  As a broader matter, insurers will have to make significant changes to their policy language to ensure they are afforded the protections provided in the Bill.  This is especially important considering the wave of counterarguments insureds will raise against insurers’ attempts to apply the new standards to existing and future claims.

Our firm has dozens of attorneys handling thousands of sinkhole claims, and a strong property department handling all aspects of first party property claims.  Our attorneys understand the potential impact of the Bill and the necessary tasks required to effectively represent insurers at this extremely important time.  Whether an insurer needs to revise its policy language, issue a coverage determination, or defend a lawsuit, our experienced trial and coverage attorneys can help.  Should you have any questions regarding the Bill or any other first party property issues, do not hesitate to contact us.

1              Although insurers are still required to offer sinkhole loss coverage, they can require an inspection of the property prior to issuing sinkhole coverage. Fla. Stat. § 627.706(1)(b).

Employment Law Update

On January 11, 2011, the U.S. Equal Employment Opportunity Commission (“EEOC”) reported that the filing of Charges alleging discrimination and/or retaliation with the federal agency nationwide hit an unprecedented level of 99,922 during fiscal year (FY) 2010, which ended Sept. 30, 2010.  While the number of Charges have increased, the EEOC reports that the amount of pending Charges has only increased approximately 1%, meaning that the EEOC is processing Charges more efficiently.  The Miami District Office of the EEOC has seen such an increase in Charges, that it has been transferring claims to the EEOC’s San Juan, Puerto Rico office for investigation.

According to the 2010 data released by the EEOC, all major categories of charge filings in the private sector increased.1 These include charges alleging discrimination under Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and the Genetic Information Nondiscrimination Act (GINA).

Fiscal year 2010 marks the first time that the EEOC was enforcing the GINA, and received 201 charges under this statute.  Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information.2 Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history).3

Also, in 2010, for the first time ever, the EEOC reported that retaliation claims under all statutes surpassed race discrimination claims as the most frequently filed Charge.  Historically, race had been the most frequently filed charge since the EEOC became operational in 1965.  This is important, as retaliation charges can be some of the most difficult charges to defend.

The 2010 year-data also showed that the EEOC filed 250 lawsuits.4 Moreover, the EEOC secured the highest level of monetary relief ever obtained in any given fiscal year, over $404 million in monetary benefits from employers, through its combined enforcement, mediation and litigation programs.  The mediation program showed particular gains, ending the year with a record 9,370 resolutions, which is an increase of 10% from 2009.

Federal and state employment laws are unique and complex.  Employees are filing EEOC Charges in record numbers.  Thus, it is important for employers to be knowledgeable about the substantive law, while remaining proactive as to preventing such claims from being filed.  Employers should ensure that they have internal policies in place to deal with claims of discrimination.  Management training is also an essential element of prevention.


2              42 U.S.C. § 2000ff.

3              Id.


Do You Value Your Appraisal Provision?

Insureds have increasingly used Florida’s informal mediation program, set forth in §627.7015, Florida Statutes, as a defense to an insurer’s request to demand appraisal under the insurance policy.  The statute provides that if an insurer fails to abide by certain notice requirements contained in the statute, the insured shall not be required to submit to, or participate in, any contractual loss appraisal process as a precondition to legal action for a breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.1

According to the statute, for personal lines and commercial residential policies, at the time a first-party claim is “filed,” an insurer shall notify all first-party claimants of their right to participate in the statutory mediation program.2 The statute defines the term “claim” as “any dispute between an insurer and an insured relating to a material issue of fact.”3 The failure to meet the notice requirements of the statute has been successfully used by insureds to argue that their insurer waived its right to invoke appraisal.

However, the statute lists the following exceptions in which an insurer is not required to give notice of the mediation program:

Where the insurer has a reasonable basis to suspect fraud;

Where there is no coverage under the policy based on the agreed facts as to the cause of the loss;

Where the insurer has a reasonable basis to believe that the claimant has intentionally made a material misrepresentation of fact that is relevant to the claim, and the entire request for payment of a loss has been denied on the basis of the material misrepresentation; or,

Where the amount in controversy is less than $500, unless the parties agree to mediate a dispute involving a lesser amount.4

In Florida Ins. Guar. Ass’n, Inc. v. Shadow Wood Condominium Ass’n, Florida’s Fourth District Court of Appeal discussed the applicability of the statute, in the context of a successor to an insolvent insurer who appealed an order denying its request to compel appraisal.5 In its affirmance of the lower court’s order, the Fourth District held that the insolvent insurer failed to comply with the notice requirements of the statute, and the insured – a condominium association – was not required to submit to the loss appraisal process.6 The Court emphasized the legislative purpose behind the statute in arriving at its ruling as follows:

There is a particular need for an informal, nonthreatening forum for helping parties who elect this procedure to resolve their claims disputes because most homeowners’ and commercial residential insurance policies obligate insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation. The procedure set forth in this section is designed to bring the parties together for a mediated claims settlement conference without any of the trappings or drawbacks of an adversarial process.7

Separately, the statute states that “[t]he department shall adopt by rule a property insurance mediation program to be administered by the department or its designee,” and “shall prepare a consumer information pamphlet for distribution to persons participating in mediation.”8 The Department of Financial Services has implemented Florida Administrative Code Rule 69J-166.031.  The Rule requires that the insurer give notice within five (5) days of the insured’s “filing” a first-party claim.  Although “filing” is not defined in the statute or the rule, the Court’s ruling in Shadow Wood suggests that the time period may start at the time the insurer first receives notice of the insured’s claim.9 Thus, based upon the language of the Rule promulgated by the Department of Financial Services pursuant to the statute, insurers should provide the statutory notice within five (5) days of receiving notice of the insured’s claim.10

Rule 69J-166.031 of the Florida Administrative Code sets forth the following notice requirements:

The Notice shall be in writing and shall be legible, conspicuous, printed in at least 12-point type, and printed in typeface no smaller than any other text contained in the notice.

The first paragraph of the Notice shall contain the following statement: “The Chief Financial Officer for the State of Florida has adopted a rule to facilitate the fair and timely handling of residential property insurance claims. The rule gives you the right to attend a mediation conference with your insurer in order to settle any claim you have with your insurer. An independent mediator, who has no connection with your insurer, will be in charge of the mediation conference. You can start the mediation process after receipt of this notice by calling the Department of Financial Services at 1(877)693-5236. The parties will have 21 days from the date of the notice to otherwise resolve the dispute before a mediation hearing can be scheduled.”

The Notice shall include detailed instructions on how the insured is to request mediation, including the address, phone number, and fax number for requesting mediation through the Department.

The Notice shall state that the parties have 21 days from the date of the notice within which to settle the claim before the Department will assign a mediator.

The Notice shall include the insurer’s address and phone number for requesting additional information.

The Notice shall state that the Administrator will select the mediator.

The Notice shall refer to the parties’ right to disqualify a mediator for good cause and paraphrase the definition of good cause as set forth in paragraph (7)(e) of the Rule.

The Notice Shall indicate that the insured is to notify the mediator 14 days before the mediation conference if the insured will bring representation to the conference, unless the insurer waives the right to the notice of representation.

In conclusion, if an insurer values its appraisal provision and wants to preserve its right to make use of the provision, the insurer must timely provide sufficient statutory notice to its insureds pursuant to §627.7015, Florida Statutes, and Rule 69J-166.031, F.A.C. (2009).

1              §627.7015(7), Florida Statutes

2              §627.7015(2), Florida Statutes.  The alternative procedure for the resolution of disputed sinkhole claims, as set forth in §627.7074, Florida Statutes, supersedes the alternative dispute resolution process §627.7015, Florida StatutesSee §627.7074(3), Florida Statutes (3).

3              §627.7015(9), Florida Statutes.

4              §627.7015(9)a-d, Florida Statutes.

5              26 So. 3d 610 (Fla. 4th DCA 2009).

6              Id. at 611.

7              Id. at 612-13.  See also, QBE Ins. Corp. v. Dome Condo. Ass’n, 577 F. Supp.2d 1256 (S.D. Fla. 2008) (holding that the statute puts the responsibility of notification on the insurer).

8              §627.7015(2), (8), Florida Statutes.

9              See Shadow Wood, 26 So. 3d at 613, fn.2 (stating that the insolvent insurer did not give the statutory notice at the time the insurer filed its claim, shortly after Hurricane Wilma, and noting that the successive insurer failed to give notice when it took over the claim from the insolvent insurer).

10           However, under Rule 69J-166.031, F.A.C. (2009), an insurer is not required to provide statutory notice when no payment has been made for a covered loss because the insurer concludes the amount of covered loss is less than the insured’s deductible.

“Cat’s Paw” Theory of Liability

Recently, the Supreme Court issued an opinion upholding the US “cat’s paw” theory of employer liability, under which an employer may be liable for discrimination in an adverse employment decision against an employee where the ultimate decision maker is unbiased and has no discriminatory motives. Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011).  Under this theory, the discriminatory motive of a non-decision maker is imputed to the decision maker, and employer, where the discriminator has some significant influence that leads to the adverse employment action. Id.

The term “cat’s paw” is derived from the Aesop’s fable, “The Monkey and The Cat,” where a devious monkey induced a cat to pull roasting chestnuts from a fire for both he and the cat to share. In doing as asked, the cat burned its paws, while the monkey ate the chestnuts from the cat unscathed, leaving her with nothing to eat.  The moral of the story being, do not be fooled into performing or accomplishing another’s tasks.  In employment discrimination cases, a “cat’s paw” scenario is presented when a biased employee or manager, who lacks decision making power, dupes a formal decision maker into making an adverse employment decision.

This “scheme” may subject the employer to an employment discrimination action, and is likely to occur where there is simply a “rubber stamping” without a complete investigation, which is necessary for the employer to purrr-tect itself from employment discrimination liability.

In Staub, Plaintiff, working as an angiography technician, sued his former employer alleging discrimination under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”),1 asserting that two of his supervisors, Janice Mulally and Michael Korenchuk, were hostile towards his military obligations.2 Id. at 1189-90.  Plaintiff also alleged that in January 2004, Mulally issued him a disciplinary warning for purportedly violating a company rule requiring him to stay in his work area whenever he was not working with a patient, which included a directive requiring him to report to Mulally or Korenchuk when his cases were completed. Id. at 1189.  Upon receipt of a report from Korenchuk, indicating Plaintiff failed to comply with the above-mentioned directive, the company’s Vice President of Human Resources (“V.P.”) made the decision to terminate Plaintiff. Id. Plaintiff did not contend that the V.P. was motivated by hostility; however, he did assert that both Mulally and Korenchuk’s actions were motivated by anti-military hostility, and that their actions led to his eventual termination. Id. at 1190.

A jury initially ruled in favor of Plaintiff, finding that Plaintiff’s military status was a motivating factor in the decision to discharge him, only to be reversed by the Seventh Circuit. Id. Ultimately, the Supreme Court reversed the Seventh Circuit’s decision, incorporating the tort law concept of proximate cause. Id. at 1191-93.  The Court held that “if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Id. at 1194.  Additionally, an employer would be liable only when the supervisor acts within the scope of his employment, or when acting outside the scope of his employment and liability would be imputed to the employer under traditional agency principles. Staub v. Proctor Hospital, 131 S.Ct. 1186, 1194 (2011); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 758 (1998).

Consequently, this decision is likely to increase employer accountability for the actions and recommendations of lower-level non-decision making supervisors.  As such, in order to be purrr-tected, employers must be alert and undertake investigations to ensure that adverse employment actions are taken only after an independent, objective evaluation of all factors.  This may require employers review prior discipline imposed and closely scrutinize the reasons given by supervisors for the suggested employment action.  The challenge for employers is that it seems to be practically impossible to review an employee’s performance without seeking input from that employee’s supervisor.  The “cat’s paw” theory highlights the importance of employers conducting diligent and independent investigations prior to terminating employees, as merely undertaking a “paper review” of an informer’s recommendation, without performing an independent investigation, will not be sufficient to shield an employer from liability if the recommendation is racially motivated.  The decision presumably raises the bar for employers hoping to avoid liability for employment decisions prompted by discriminatory animus, even when an unbiased decision maker made the final call after an impartial investigation.

In the wake of The Staub decision, although increasing employer accountability, the Court did provide some guidance on how an employer may avoid liability in “cat’s paw” cases, explaining that if the employer’s investigation results in an adverse employment action for reasons unrelated to the supervisor’s original biased action, the employer will not be exposed to liability. Staub, 131 S.Ct. at 1193.  Additionally, requiring the Plaintiff to establish that the non-decision maker (the individual alleged to have discriminatory motives) actually intended to cause the adverse employment action certainly raises the bar for Plaintiffs attempting to avoid summary judgment.  Furthermore, the Supreme Court did not address whether an employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the employment decision. Id. at 1194.  Such decision may provide employers with a defense if it is a co-worker’s alleged discriminatory intent that is at issue.3

1              The purpose of USERRA is “to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services:” (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service.”  See 38 U.S.C. § 4301.

2              While employed by Proctor, Plaintiff was a member of the United State Army Reserve, which required him to attend drill one weekend per month and train full time for two to three weeks per year.  Staub, 131 S.Ct. at 1189.

3              The Court noted that Plaintiff took advantage of Proctor’s grievance process, yet expressed no view as to whether Proctor would have an affirmative defense if he did not.

Medical Malpractice Legal Update — Third Edition

“Causation Defense Prevails”

To prevail in a medical malpractice action the plaintiff must establish the following as to each defendant: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimedCiting Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla. 1984).  The holding in Hollywood Medical Center, Inc. v. Alfred, Nos. 4D09-4878 and 4D10-1003 (Fla. 4th DCA 2012) highlights the importance of the third element. Hollywood Medical Center (hereinafter “HMC”) appealed a final judgment in favor of the plaintiff and argued the trial court erred in denying their motion for directed verdict, as the plaintiff failed to prove that any negligence on the part of HMC’s nursing staff affected Ursuline Alfred’s outcome, or that had the negligence not occurred, Alfred more likely than not would have survived.

Alfred presented to HMC after having suffered a mal seizure.  HMC nursing personnel evaluated Alfred 8 minutes after she arrived to the emergency room.  They recorded her vital signs and described her as a level 2 patient; however, her vital signs corresponded to a level one patient, meaning she required the most intensive care.  The emergency room physician simultaneously presented at bedside and ordered medication to prevent another seizure.  Thereafter, Alfred went into full cardiac arrest and was pronounced dead 38 minutes after arriving at the hospital.

Plaintiff’s experts opined Alfred suffered a pulmonary embolism, which she could have survived had the physician intubated Alfred upon his initial evaluation.  With respect to the nursing care, Plaintiff’s expert opined nursing personnel fell below the standard of care when they failed to take Alfred’s vital signs immediately upon presentation to the hospital, characterizing her as a level 2 patient, and failing to question the physician’s choice of drug treatment.

HMC moved for directed verdict as to its vicarious liability for the physician and its nursing staff.  HMC argued the plaintiff failed to prove that the nursing staff’s breach in the standard of care caused Alfred’s death.  Plaintiff only proved the physician’s failure to intubate contributed to Alfred’s death.  No one testified the nurses’ failure to act adversely affected Alfred’s outcome.  Without such testimony as to causation, the defendant is entitled to a directed verdict.  A plaintiff in a medical malpractice action must show more than a decreased chance of survival because of the defendant’s conduct.  Rather, the evidence must show the acts or omissions adversely affected the patient’s outcome.

Practice Note:

If there are several possible causes of injury to the plaintiff, and the evidence does not eliminate the non-negligent causes, the plaintiff has not met his burden of proof.

For further assistance or questions, please contact:

·         Paula Parisi (email to:; 813-864-9311)

Partner in Cole, Scott & Kissane, P.A.’s Medical Malpractice Group.

No Longer Waiting on Williams: Supreme Court Holds that a Cause of Action is a Vested Right and Cannot be Impaired by a Statute adding an Element. Ensures § 768.0755 Cannot be Applied Retroactively to Lawsuits filed prior to July 1, 2010

Although Florida courts are split on whether Florida Statute § 768.0755 (2010), Premises Liability for Transitory Foreign Substances in a Business Establishment, is retroactive or prospective, the Florida Supreme Court of Florida recently reviewed another similar statute’s retroactivity, as applied in American Optical Co. v. Spiewak, No. SC08-1616, 2011 WL 2652189, (Fla. 2011) upholding Williams v. American Optical Co., 985 So. 2d 23 (4th DCA 2008).  This ruling makes it very unlikely that § 768.0755 will apply to cases filed before July 1, 2010.

Since being enacted effective July 1, 2010, Florida state and federal courts have not consistently ruled whether § 768.0755 is retroactive as to incidents that occurred before July 1, 2010.  Notably, § 768.0755 returns the state of slip-and-fall cases back to their pre-Owens status, in that plaintiffs again have to plead and prove that a defendant had actual or constructive knowledge of the foreign transitory substance.  Thus far, the only reported precedent on this specific issue comes from Florida federal court cases (two in the Northern District of Florida, one in the Southern district, and a conflicting case in the Middle District of Florida) and various circuit court orders throughout Florida (which are also split).

To determine whether a statute is retroactive, courts analyze the legislative intent and the nature of the statute:

It is a well established rule of statutory construction that, in the absence of an express legislative statement to the contrary, an enactment that affects substantive rights or creates new obligations or liabilities is presumed to apply prospectively.  However, a statute that is procedural in nature does not share the same presumption and may be applied retroactively. Substantive law prescribes rights and duties, while procedural law concerns the means and methods to enforce those rights and duties. Further, if a statute creates new legal obligations or attaches new legal consequences to events completed before its enactment, the courts will not apply the statute to pending cases, absent clear legislative intent favoring retroactive application.

The Florida legislature did not indicate clear intent for the statute to apply retroactively, providing only that “this act shall take effect on July 1, 2010.”  Thus, there is a presumption that this matter is retroactive, with the follow-up analysis becoming: whether the statute is substantive or procedural.

The Northern District of Florida, in Yates v. Wal-Mart Stores, Inc., No. 5:10-cv-226/RS-GRJ, 2010 WL 4318795, (N.D. Fla. 2010), found this statute to be procedural because the statute that it overturned, Florida Statute §  766.01710, was titled “Burden of Proof” and statutes affecting the burden of proof are deemed procedural: “A substantive law creates, defines, and regulates rights as opposed to procedural or remedial law which prescribes a method of enforcing the rights or obtaining redress for their invasion . . . . Burden of proof requirements are procedural in nature.”

However, the Southern District, Middle District, and other Floridatrial courts have taken the position that the statute cannot be applied retroactively based upon the reasoning in Williams, reasoning that has now been upheld by ­­­American Optical.

Williams held that a recent statute that required plaintiffs in asbestos cases to prove that any malignancy or physical impairment they suffered resulted from their exposure to asbestos, could not be applied retroactively.  Williams involved the “Florida Asbestos and Silica Compensation Fairness Act” (Fl. Stat. § 774.201-09 (2005)), which became effective in 2005. The key provision at issue in Williams states that a plaintiff – – to bring an action for damages – – has to plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor.  Under the previous standard, a plaintiff only needed to show that “they had suffered an injury from an asbestos-related disease.” More specifically, the Fourth District in Williams noted that there were essentially three levels of analysis to determine whether a lawsuit had vested into a right: (1) not all of the elements of a cause of action have occurred, and thus, the right to that cause of action is a mere expectation and has not vested); (2) all of the elements of a cause of action have already occurred, but there is no judgment (the issue in Williams) and (3) there is a monetary judgment, which is clearly vested right.  Williams went on to hold that the second situation – – even if the legislature is clear that the statute is meant to be retroactive – – is unconstitutional, finding that a cause of action based upon a fulfillment of each element, is a vested right.

Here, regarding § 768.0755, plaintiffs’ counsel and some courts have taken the position that “constructive notice” is a new element akin to Williams’ Asbestos Statute, requiring pleading and proving that injuries stem from asbestos: plaintiffs must now plead and prove actual or constructive knowledge on the part of the defendant.  Interestingly, Williams contradicted a case from the Third District concerning whether an asbestos statute is retroactive; in that case, Daimler-Chrysler, the Court held changing an element did not affect a plaintiff’s substantive right, stating “Plaintiff was merely pursing a common law tort theory to recover damages” and that such a pursuant was not a “vested right” because the right was not yet fixed.

However, the issue is now largely clarified, as the Florida Supreme Court has upheld Williams holding that having a valid cause of action is a vested right and that if adding a new element to a cause of action impairs a party’s ability to proceed with their lawsuit, then said cause of action is unconstitutional if applied retroactively.  In other words, the Supreme Court has held if a party held valid cause of action, that cause of action cannot be impaired by subsequent legislation.  Logically, if Florida Statute § 768.0755 (2010), Premises Liability for Transitory Foreign Substances in a Business Establishment, is applied retroactively, plaintiffs who had a cause of action, may no longer have a cause of action, if they cannot prove that a premise owner had actual or constructive knowledge.  Thus, § 768.0755 cannot be applied retroactively.

Since Williams is confirmed, courts will rely on the Florida Supreme Court’s guidance – – especially since Federal Court’s have already looked to the analysis in Williams.  Thus, although § 768.0755 is a welcome change, to pre-Owens jurisprudence, it will likely not apply to cases filed before July 1, 2010.

The Long Arm of Punitive Damages

Punitive damages are frequently sought in all types of tort claims.  Punitive damages are those damages that are intended to punish or deter a defendant and others from engaging in willful or wanton conduct.

Since they are designed to punish and deter, punitive damages are not used to make the plaintiff whole.  As such, punitive damages do not necessarily depend upon the financial condition of the wronged party, but are rather dependent, in part, on the financial means of the party at fault who has engaged in the bad conduct.

Florida requires only a showing of gross negligence and/or willful and wanton conduct on the part of a party and does not require proof that the alleged wrongdoer had the specific intention of causing the type of harm suffered by the wronged party.  The wronged party must prove that the alleged wrongdoer was unusually careless and was in complete disregard for the possible gross and flagrant injurious consequences which may result from the wrongful conduct.

One area where a party could be found liable for punitive damages, when at first glance the party appears to be only vicariously liable, is when they are sought against a vehicle operator and owner in an automobile negligence case.  It is well settled in Florida that under the Dangerous Instrumentality doctrine, the responsibility of ensuring that a vehicle is properly operated falls on the owner of the vehicle.

The Florida Supreme Court has repeatedly held that Florida’s Dangerous Instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily and knowingly entrusts that motor vehicle to someone whose negligent operation causes damage to another.

For liability to be attributed under the Dangerous Instrumentality doctrine, the person operating the motor vehicle must be acting with the express or implied permission, knowledge, or consent of the owner.  Knowledge and consent of the owner as to the use of the motor vehicle are essential elements in establishing the owner’s liability and must be proven before the owner can be held liable for damages caused by the entrusted negligent driver.

Punitive damages under the Dangerous Instrumentality doctrine are premised upon the theory that the one who creates the danger by entrusting the automobile to someone else is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation of that entrusted person.

In Trevino v. Mobley, Florida’s Fifth District Court of Appeal held that the plaintiff’s claim for active negligent entrustment could result in additional liability despite already having a claim of permissive/vicarious negligence under vicarious liability.  Trevino involved a fatal accident in which 20 year old, Heather Mobley was killed when the vehicle she was driving was struck head on. Her estate brought claims against the other driver and his parents, who owned the vehicle, including claims for negligent entrustment of the vehicle.  The defendants, Maria and Joel Trevino, entrusted their vehicle to their 21 year old son, Javier Trevino, who was speeding, driving without headlights and passing in a no-passing zone, when he collided head on with plaintiff’s daughter, Heather, who died on impact.

The trial judge directed a verdict against the plaintiff on her claim of negligent entrustment.  The jury found Javier negligent and awarded actual, $5 million in non-economic damages, and $10 million in punitive damages against Javier Trevino for his active negligence and against Maria and Joel Trevino for vicarious liability.  In the trial court’s ruling with regards to the negligent entrustment claim, it reasoned that vicarious liability and negligent entrustment were concurrent theories of liability, that the claim of negligent entrustment imposed no additional liability,  since the jury had already found Maria and Joel Trevino to be vicariously liable under the Dangerous Instrumentality Doctrine.  The trial court further ruled that the claim of negligent entrustment posed the danger of unfair prejudice because it would lead to the introduction in evidence of the son’s driving record.  The trial court relied heavily on Clooney v. Geeting for the concurrent liability theory, However, Clooney was decided before the 1999 enactment of Florida Statute 324.021(9)(b)(3).

Under Florida Statute 324.021(9)(b)3, negligent entrustment is not a concurrent theory of liability, and would thus not be subject to the statutory caps applicable to ownership liability.  As such, the negligent entrustment claim has the potential to increase a vehicle owner’s liability for damages as a result of their own independent negligence in entrusting their vehicle.  The statute limits non-economic damages awardable against a vehicle owner for damages caused by the negligence of the permissive user.  However, the statute concludes with a sentence that states: “Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence”. 

In reversing the trial court’s ruling, the appellate court noted that the effect of the statute was to limit a vehicle owner’s exposure for vicarious liability, but not for direct liability of the vehicle owner’s own negligence in entrusting a motor vehicle to a wrongdoer.  Thus, a negligent entrustment claim could subject the owner to additional liability.

Therefore, Florida Statute 324.021(9)(b)3, would limit the permissive/vicarious liability of Joel and Maria Trevino to $100,000 as to non-economic damages.  However, the claims for negligent entrustment against Joel and Maria Trevino, if the jury finds fault on the parents, could increase those damages as those claims were predicated on active or direct negligence on the part of the parents, Maria and Joel Trevino.  And so, punitive damages can be awarded under a theory of active negligent entrustment if the jury finds that the parents’ conduct was grossly negligent, thus increasing the punitive damages award.

Walmart vs. Dukes

On June 20, 2011, the United States Supreme Court (hereinafter “Supreme Court”) decided what has been deemed as one of the largest class action lawsuits ever filed.  Specifically, a class of 1.5 million female, Wal-Mart employees alleged that they suffered sexual discrimination in the workplace.  The claims were brought under Title VII on the basis that Wal-Mart’s local supervisors adversely exercised discretion over the plaintiffs which resulted in unequal pay and a lack of promotion.  Due to the purported harm, the employees sought backpay, punitive damages, injunctive and declaratory relief from Wal-Mart.

In this case, three named plaintiffs, Betty Dukes, Christine Kwapnoski, and Edith Arana, represented the remainder of the class members.  They claimed that the decisions made by their local supervisors, pertaining to compensation and promotional matters, unequally favored their male co-workers and had a disparate impact on the female employees.  It was further alleged that disparate treatment occurred because Wal-Mart had knowledge of these practices but refused to correct them.  Under this theory, all of Wal-Mart’s female employees, throughout the nation, suffered from the subjective decision-making of their respective supervisors at the local stores.

The federal trial court certified the class of “all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998” and the appellate court approved the certification.  The question before the Supreme Court, among other issues, was whether the certification was appropriate under the controlling law and factual circumstances.

As stated by the Supreme Court, class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. Under the rule, a key factor is establishing “commonality” in the questions of law or fact pertaining to the class.  In this context, the plaintiffs must establish an equal injury amongst the class members, based upon a common contention, in which the relief sought provides a remedy to the entire class.  The court further explained that certification depends more upon the ability for a class to provide common answers as opposed to the mere raising of common questions.

In Title VII claims, such as the subject action, an essential question is the reason for the adverse employment decision.  According to the opinion, the plaintiffs sought to sue for “literally millions of employment decisions at once.”  However, without a close relation amongst all of the individual employment decisions, the relief sought cannot yield a common answer.

To establish commonality in general, plaintiffs must bridge the gap between an individual employee’s claim and the existence of class members who suffered the same injury as the employee.  As a first method, this may be accomplished by showing a discriminatory testing or evaluation process exercised by the company as a whole.  Second, this may be establish by showing significant proof that the employer held a general policy of discrimination. The latter method applied to the plaintiffs in this case.

Here, the Supreme Court found that the plaintiffs failed to meet this standard.  Specifically, the employees submitted testimonial evidence from a sociological expert supporting the position that the employer had a “strong corporate culture” that led to sex discrimination. However, the only widespread policy this established was that the employer “allow[ed] discretion by local supervisors over employment matters.”  The court further stated that on the surface, this was directly in contrast to a uniform practice by Wal-Mart for commonality purposes.  Further, the court found that, if anything, the policy would be one that forbids the existence of such discriminatory practices.

It is worth noting that the court clarified that grounds for a Title VII claim could potentially be based upon a disparate impact resulting from the discretion exercised by supervisors in an “undisciplined system” yielding the same effect as intentional discrimination.  However, in cases such as this one in which the supervisors are allowed to determine how their decisions are made, coupled with a corporate policy against discrimination, it is more likely that the majority of supervisors make nondiscriminatory decisions for promotion and compensation matters. In addition, supervisors may subjectively rely on lawful criteria, such as an employees test scores and educational advancement, without any intent to discriminate; but nonetheless, resulting in disparity overall.  Given these factors, the subjective discrimination of one supervisor is not necessarily attributable to another.

The opinion also states that the plaintiffs failed to identify “a common mode of exercising discretion that pervades the entire company.”  Significantly, the court found that “in a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.”  Also of importance is Wal-Mart geographical structure of roughly 3,400 stores with anywhere from 80 to 500 employees at each location.  Based on these circumstances, it can be inferred that plaintiffs’ challenge in establishing commonality was made difficult by the enormous size and geographic nature of the employer.

In short, the plaintiffs put forth statistical evidence that was insufficient.  The evidence was comprised of the findings of a statistician and labor economist.  According to the statistician, Wal-Mart had “significant disparities” between the male and female employees that could only be the result of sex discrimination.  The economist found that the employer promoted a lower percentage of female employees in comparison to other competing businesses.  However, the court determined that even if these disparities were indeed true at the national level, they failed to show that the employer had a policy to discriminate at the regional districts or local stores.

Moreover, even if the statistical evidence showed that every one of the 3,400 local stores had discriminatory pay and promotional patterns, commonality would still be absent.  In particular, the availability of qualified female employees may greatly vary from store to store.  In addition, without a uniform policy in place, the promotional criteria used by each supervisor were subjective and therefore, varies from store-to-store.  These factors fail to establish a commonality of issues.

The court further stated that identifying a particular employment practice is “necessary when a class of plaintiffs is sought to be certified.”  However, besides the mere “existence of delegated discretion, [the plaintiffs] have identified ‘no specific employment practice’ – much less one that ties all their 1.5 million claims together.”

The anecdotal evidence also failed to establish a wide-spread policy of discrimination.  Specifically, the employees filed 120 affidavits attesting to discriminatory harm.  Importantly, the Supreme Court found that this merely represented a ratio of 1 to 12,500 class employees and only involved 235 Wal-Mart stores.  The majority of the affidavits pertained to only six states.  Additionally, half of all states were represented in only two or less affidavits and 14 states were uninvolved.  Nonetheless, even if the evidence was deemed true, it could not support certification of the voluminous class members.

An interesting take on the case is Justice Ginsburg’s observation that the court’s ruling requires anecdotal evidence in discrimination claims to be commensurate with the number of employees; or 1.5 million in this case. The majority opinion denied the assertion by confirming that generally, plaintiffs are free to dictate the scope of their anecdotal evidence.  However, “when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.”  Based on this analysis, in a 5-4 ruling, the Supreme Court reversed the appellate court’s affirmance of the class certification.

As a practical matter, an inference may reasonably be made that the ruling works to limit the size of classes in future discrimination cases.  Although the court does not directly state a correlation between large class sizes and difficulty in certification, the ruling suggests that certification may have been more likely to achieve had the plaintiffs selected significantly less employees for class membership.  The plaintiffs may also have fared better by narrowing their class to a smaller geographical region.  In other words, plaintiffs who seek to certify a voluminous, wide-spread class do so at their own peril.

Right Waiver? No Problem. Wrong Waiver? Problem.

In the summer of 2008, Makimba Mimms, a former Navy information systems technician, sued a Manassas, Virginia gym alleging that he sustained permanent disabilities in the form of rhabdomydysis (very rapid breakdown of muscle fibers) as a result of performing a “Crossfit” workout in 2005 involving timed, high intensity strength training with little to no rest in between sets. Mimms, who claimed damages in over $500,000 against the gym, a “Crossfit” affiliate, and a gym employee who administered the workout, was ultimately awarded $300,000 by a Prince William County Virginia jury.

With the rising popularity of the recent wave of “Crossfit” and boot camp-style workouts comes great risk to gyms and fitness centers that host these high intensity exercises. This scenario, of course, is not solely limited to fitness centers but also extends to many other invitee situations where the very real possibility of harm or injury is an ever present looming danger.  Consequently, those who find themselves in similar situations where they are legally responsible for the safeguarding of other’s safety may find themselves confronted with the issue  of how they can protect themselves from being sued. Therefore, the question becomes how a business operator or owner can protect herself, and her employees, from lawsuits similar to that brought by Makimba Mimms.

Under Florida law, exculpatory clauses which limit or even exempt liability for negligence are enforceable provided they meet the necessary requirements.  See Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998).  While exculpatory clauses seeking to relieve a party from his own negligence are strictly construed against the party claiming relief from liability, the Florida Supreme Court has upheld these clauses as valid and enforceable where “the intent is clearly and unequivocally stated” in the agreement.  University Plaza Shopping Center v. Stewart, 272 So. 2d 507, 511 (Fla. 1973); see also Sunny Isles Marina, 706 So. 2d at 922.

With that being said, what should be included in this all-important Waiver?  For a Waiver to be valid and enforceable, several components should be incorporated, with the first and foremost being the exculpatory clause.  Naturally, in the case of a gym or fitness center, one would want protection from “any and all claims” arising from one’s own active or passive negligence including that of one’s employees.  However, the possibility arises where protection from “any and all claims” really does not encompass “any and all claims.”

It is never presumed that a contract is intended to protect one against one’s own negligence, and unless the agreement clearly so states, the courts will hold that such was not the intention. Smith v. Ryan, 142 So. 2d 139, 141 (Fla. 2d DCA 1962); see also University Plaza Shopping Center, Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973).   In University, a landlord was sued for wrongful death that occurred when a gas line beneath a barber shop leased by a tenant exploded. The landlord filed a third party complaint against the tenant and its insurer for indemnity basing his action upon the lease agreement containing an indemnity provision which read, in pertinent part:

“SECTION II. INDEMNITY-LIABILITY INSURANCE. Tenant shall indemnify and save harmless the Landlord from and against any and all claims for damages to goods, wares, merchandise and property in and about the demised premises and from and against any and all claims for any personal injury or loss of life in and about the demised premises.” Id. at 508-509.

The central issue presented was whether a contract of indemnity, when stated in general terms of “any and all claims,” indemnifies the indemnitee for damages resulting from his sole negligence.  Id. at 510. In recognizing that a contract for indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, the Supreme Court held that simply using general terms such as “any and all claims” does not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee. Id. at 511.

Thus, for these clauses to be effective, they must clearly state the intention to release the party from liability for his or her own negligence. Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318, 320 (Fla. 4th DCA 1984); see also Banfield v. Louis, 589 So. 2d 441 (Fla. 4th DCA 1991)(holding that an exculpatory clause stating, “I understand that this waiver includes any claims based on negligence, action or inaction of the above parties,” was clear and unequivocal to release the defendant from their own negligence and bar plaintiff’s recovery).  In Van Tuyn, the Court was presented with the task of determining the enforceability of a waiver signed by a patron who was injured as a result of riding a mechanical bull at a country western bar.  The waiver provided, in part:

“I hereby voluntarily assume any and all risk, including injury to my person and property which may be caused as a result of my riding or attempting to ride this Bucking Brama Bull.” Id. at 320.

In determining that this waiver did not protect the defendants from liability for their own negligence, the court emphasized and reiterated that, for such a clause to be valid and enforceable, it must so clearly state that it releases the party from liability for its own negligence. Id. The court held that “the agreement being reviewed is devoid of any language manifesting the intent to either release or indemnify Club Dallas…for its own negligence.” Id. In response to the defendant’s argument that there was an express assumption of the risk present to preclude the plaintiff’s recovery, the court rejected that line of reasoning since, for express assumption of risk to be valid, it must be clear that the plaintiff understood that she was assuming the particular conduct by the defendants which caused her injury. Id. at 320 and 321.

Additionally, Florida courts have even upheld agreements that attempted to release business owners from liability for their actions that constituted gross negligence. For example, in Theis, II v. J&J Racing Promotions, 571 So. 2d 92 (Fla. 2d DCA 1990), the personal representative of a race car driver’s estate brought an action against the racetrack operators after the decedent was killed in a racing accident.  The essential issue put forward for the Court’s determination was whether the release and waiver signed by the decedent was “clear, unambiguous, unequivocal, broad enough and specific enough” to protect the racetrack owner from liability for his own negligence, even if his actions constituted “gross negligence.” Id. at 93.  The release and waiver, including the assumption of risk clause, stated that the “releasees” would be released “from all liability” to the undersigned “whether caused by the negligence of the releasees or otherwise.” Id.  Therefore, since the term “negligence” was used in the release, and because it was not limited in scope, it “must be construed as intended to encompass all forms of negligence, simple or gross.” Id. at 94 (However, the Court noted that only intentional torts are not held subject to such an exculpatory clause. See L. Luria & Son, Inc. v. Honeywell, Inc., 460 So. 2d 521 (Fla. 4th DCA 1984).)

The ruling in J&J Racing can be distinguished from the holding in Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998), where the court did not uphold an exculpatory clause where there existed ambiguous and contradictory language.  In this case, the court was presented with the issue of whether exculpatory provisions contained in the boat storage agreements between Sunny Isles Marina and boat owners were enforceable so as to absolve the marina from all claims of negligence.  In answering this question, the court looked to two different provisions that were contained in the agreement (provided below in pertinent part):

“7. RISK OF LOSS….The Marina shall not be liable in any way for any loss or damage sustained by Owner…which arises out of any cause not attributable to the willful gross negligence of the Marina…

8. INDEMNIFICATION. The Owner hereby waives any right it has to claim any damages or other loss or liability from the Marina, its employees or agents arising out of any accident, fire or other casualty about the Marina, whether the same results from any act or neglect of the Marina…” Id. at 921.

In its analysis, the court noted an ambiguity between paragraphs 7 and 8 as set forth above.  While, on one hand, paragraph 7 purported to absolve the Marina of liability for any action except “willful gross negligence,” paragraph 8 attempted to absolve the Marina from “any” form of negligence. Id. at 922.  Therefore, the court found that an “ordinary and knowledgeable party” would not know what he or she is contracting away and did not uphold the agreement. Id.

Finally, courts have looked to the objective appearance of the actual, printed exculpatory clause itself in determining the enforceability of an executed waiver and release.  See DeBoer v. Florida Offroaders Driver’s Ass’n., Inc, 622 So. 2d 1134 (Fla. 5th DCA 1993)(Where the court held that a reasonable person would have heeded a warning in a release to stay out of a restricted area where the release was printed in at least eight point type and bold print and/or caps identified the document as a release, waiver, indemnification and assumption of risk agreement).

A specific example of this analysis in the context of a high-liability exercise facility such as a crossfit gym can be found in the case of Quintana v. Crossfit Dallas, LLC, 347 SW 3d 445 (Tex. App. Dallas 2011).  Though it is not a Florida case, the same rules of law and factors apply.  Plaintiff Kimberly Quintana sued her personal trainer, Troy Dodson, and Crossfit Dallas for negligence, breach of warranty and breach of contract after she was injured during a crossfit exercise.  Quintana alleges that she was injured as a result of her trainer’s failure to supervise her, causing her to endure surgery and over $84,000 in damages.  While Quintana admittedly signed a release and waiver, she argued against its validity and enforcement.  Her first argument concerned the “conspicuousness” of the release.  Pursuant to Texas law, before a party can release away, or shift, his own negligence, he must provide “fair notice” by satisfying the requirements of conspicuousness and the express negligence rule. Id. at 450. For a provision to be “conspicuous,” it must be written or displayed in a way that a reasonable person against which it is to operate ought to have noticed it by being incorporated in a “heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size” and “language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size or set off from surrounding text.” Id. While Quintana argued that the release did not meet these requirements, the Court disagreed.  In its discussion, the Court noted that the word “Release” was near the top of the second page, appeared in larger type than any other text on the document and was bolded.  Id. at 451. Additionally, the text contained three paragraphs and Quintana had initialed the document.  Id. at 451.

Quintana’s last argument against the validity of the release concerned its compliance with the express negligence rule.  In order for a party to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the 4 corners of the contract. Id. at 450. Quintana argued that the present release was too vague, broad and ambiguous to provide fair notice.  However, the Court once again disagreed with Quintana.  Instead, the Court pointed to the fact that the release specifically stated that the participant “assumes any and all liability” for “damages of any kind” “allegedly attributed to the negligent acts or omissions” of the Crossfit facility and its employees.  Id. at 452. Therefore, the Court concluded that the release did satisfy the requirements of the express negligence rule.

In conclusion, while the widely admired catch-all phrase of “any and all” may in truth not be sufficient to exculpate one from any and all liability caused through his own negligence, there are numerous ways to circumvent this undesirable result as discussed above.  First, require your patron or member to read and sign the agreement.  Secondly, ensure that your waiver complies with the Florida requirement of “clear and unequivocal” language manifesting the intent to release liability.  Thirdly, make sure to include the use of the words “active or passive negligence” or even language including “gross negligence.” Additionally, also be sure to include exculpatory language regarding the negligence of the signing party, your employees, other patrons and, in the case of a fitness center, your exercise equipment.  Finally, do not be afraid to include a list of exceptionable medical conditions or injuries, even death, that may occur as a result of participating in certain activities.  The main and underlying objective is to explicitly express a clear intention to contract to a release of your liability in a way that is easily understandable to the “reasonable person” signing away his right to hold you liable for actions that may or may not be directly caused by your own negligence. Only then can one begin to protect oneself from another Makimba Mimms situation.