RISSMAN, BARRETT, HURT, DONAHUE & McLAIN, P. A. ATTORNEYS AT LAW

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1 RISSMAN, BARRETT, HURT, DONAHUE & McLAIN, P. A. ATTORNEYS AT LAW STEVEN A. RISSMAN ROBERT C. BARRETT JENNINGS L. HURT III ROBERT A. DONAHUE JOHN E. McLAIN III RICHARD S. WOMBLE STACIE B. GREENE THEODORE N. GOLDSTEIN RAYMOND A. LOPEZ VANCE R. DAWSON RICHARD B. MANGAN JR. HENRY W. JEWETT II DANIEL M. POLLACK ART C. YOUNG NICOLE D. RUOCCO DANIEL T. JAFFE BEATRIZ E. JUSTIN GREGORY GIANNUZZI DAVID K. BEACH F. DEAN HEWITT EDWARD M. COPELAND IV DAVID R. KUHN G. WILLIAM LAZENBY IV R. CLIFTON ACORD II JILL M. SPEARS JEFFREY J. KERLEY KARISSA L. OWENS OF COUNSEL ROBERT J. JACK JOHN P. DALY EXECUTIVE DIRECTOR W. SCOTT PETERSON TAMPA COMMONS ONE NORTH DALE MABRY HIGHWAY 11TH FLOOR TAMPA, FLORIDA TELEPHONE (813) TELECOPIER (813) EAST PINE STREET 15TH FLOOR P.O. BOX 4940 ORLANDO, FLORIDA TELEPHONE (407) TELECOPIER (407) PLEASE REPLY TO: ORLANDO 709 SEBASTIAN BOULEVARD SUITE B SEBASTIAN, FLORIDA TELEPHONE (772) TELECOPIER (772) SEBASTIAN@RISSMAN.COM AMY L. BAKER AMANDA L. BRUS STEVEN B. BURRES DEREK J. BUSH SEAN M. CROCKER CHRISTOPHER E. DENNIS JAMES E. FAVERO III SUSAN R. FULLER PAUL B. FULMER JANNINE C. GALVEZ ELISE J. GEIBEL CHRISTOPHER A. HANSON VICTORIA S. LUNA LAURA F. LYTLE ERIC F. OCHOTORENA JEREMY T. PALMA JEFFREY M. PATNEAUDE D. BLAKE REHBERG KELLEY A. RICHARDS RICHARD B. ROBBINS JUAN A. RUIZ GREG R. SCHMITZ BRYAN R. SNYDER LARRY D. SPENCER MEREDITH M. STEPHENS ELIZABETH M. STUART F. PAUL TIPTON NICOLETTE E. TSAMBIS JASON R. URBANOWICZ MEGHAN C. WHISENHUNT CHRISTINE V. ZHAROVA FLORIDA LAW WEEKLY APRIL 6, 2012 TORTS MEDICAL MALPRACTICE - PRESUIT REQUIREMENTS - FAILURE TO COMPLY PROPER TO DISMISS COMPLAINT WITH PREJUDICE FOR FAILURE TO PROVIDE VERIFIED EXPERT OPINION PROVISION OF UNVERIFIED EXPERT OPINION PRIOR TO EXPIRATION OF STATUTE OF LIMITATIONS DID NOT SATISFY STATUTORY REQUIREMENTS Berry v. Padden, 37 Fla. L. Weekly D743 (Fla. 4th DCA March 28, 2012) The 4th DCA affirmed the trial court s order dismissing the plaintiff s complaint with prejudice for failure to comply with the mandatory pre-suit requirements of a medical practice action. It ruled the plaintiffs failed to provide a verified written medical expert opinion prior to the expiration of the Statute of Limitations. On November 24, 2008, plaintiffs filed suit against Elsie Berry s doctor, David Padden, M.D. and Lighthouse Orthopedics

2 Page 2 alleging that Dr. Padden committed medical malpractice by improperly installing an oversized tibial component when he performed Elsie's knee replacement surgery on April 27, The plaintiffs attached to their complaint a certification of counsel, which stated that after reasonable investigation there are grounds for a good faith belief that there has been negligence in [the] care of plaintiff against each named defendant upon receipt of written opinion of an appropriate expert defined by F.S that there appears to be evidence of medical negligence. The written opinion referenced in the certification of counsel was a letter from an orthopedic surgeon, Dr. Christopher J. Cassels. The letter was neither sworn, notarized nor otherwise verified. Subsequently, plaintiffs provided and filed a verified written opinion by Dr. Cassels on May 19, On May 29, 2009, the defendants moved to dismiss or stay the complaint for failure to comply with the statutory presuit screening requirements. The motion alleged that the plaintiffs failed to provide a verified written opinion corroborating the reasonable grounds for initiating medical negligence litigation. The trial court granted the motion and dismissed the case with prejudice, stating plaintiff failed to provide a verified written medical expert opinion pursuant to F.S within 180 days of October 31, 2008 which is the date of [the] statute of limitations. The plaintiffs appealed the dismissal. The defendants did not challenge the contents of the original letter from the plaintiffs medical expert, but rather its lack of verification. The law is well-established that a properly verified, corroborating medical expert opinion must be provided by the plaintiff to the defendant prior to expiration of the statute of limitations. In this case, plaintiffs provided the defendant with only an unverified, corroborating medical expert opinion prior to the expiration of the statute of limitations. Accordingly, the 4th DCA affirmed the trial court s order dismissing the plaintiffs complaint with prejudice for failure to provide a properly verified corroborating expert opinion prior to the expiration of the statute of limitations.

3 Page 3 INSURANCE - FIRST-PARTY BAD FAITH ACTION PROPER CHOICE-OF-LAW RULE APPLICABLE TO CLAIM IS LEX LOCI CONTRACTUS OR PLACE WHERE THE CONTRACT EXECUTED Higgins v. West Bend Mutual Insurance Co., 37 Fla. L. Weekly D757 (Fla. 5th DCA March 30, 2012) The 5th DCA affirmed the trial court s final order entering summary judgment in favor of West Bend, in this first-party bad faith action. The issue which contract choice of law rule applies to first-party bad faith action. The 5th DCA determined that lex loci contractus, or where the contract was executed, applies to such actions. In 1999, while vacationing in Orlando, the Higginses were injured in an automobile accident caused by the other party. The Higginses, Minnesota residents, had an automobile insurance policy they obtained in Minnesota from West Bend, a Wisconsin corporation. The policy provided for UM coverage up to $100,000 per person and $200,000 per accident. The Higginses sued in Florida the at-fault driver, who was underinsured, and West Bend. The at-fault driver settled for $100,000, the extent of the driver's liability insurance policy limits, but West Bend refused to settle for the UM policy limits, disagreeing with the value of the UM claim. Following a jury trial, the Higginses were awarded $260,000. After setoff of the driver's $100,000 in liability limits settlement, West Bend was ordered to pay, and subsequently paid, the $100,000 UM coverage limits. In 2007, the Higginses filed a bad faith action to recover the nearly $60,000 in excess of the UM policy limits against West Bend, pursuant to F.S and (10)(2006), arguing the insurer had failed to settle the claim in good faith. West Bend moved for partial summary judgment, or alternatively, a case management order to determine which state law applied to the Higginses' claim under the policy, which was without a choice of law provision. The insurer argued Minnesota law, not Florida law, governed the insurance contract and the insureds' bad faith claim.

4 Page 4 The trial court ruled the law of the place where the contract was executed, or lex loci contractus, was the proper choice-of-law rule applicable to the claims. Applying that principle, the trial court held that the bad faith action was governed by Minnesota law. West Bend subsequently moved for final summary judgment or judgment on the pleadings, contending Minnesota law did not provide for first-party bad faith claims. After a hearing, the trial court agreed and entered summary judgment in West Bend's favor. On appeal, the Higginses argued the trial court erred in determining Minnesota law applied to the action because the correct Florida conflict of law principle to apply was the law of the place of performance, not the law of the place where the contract was executed. The standard of review for choice-of-law questions is de novo. Contract choice-of-law principles apply to bad faith actions. Questions bearing on the interpretation, validity and obligation of contracts are substantive and governed by the rule of lex loci contractus. The rule provides that the laws of the jurisdiction where the contract was executed govern. Conversely, questions related to the manner or method of performance under a contract are determined by the law of the place of performance. The parties in this case disagreed as to whether the place of contracting or place of performance should apply to bad faith actions. The Higginses contended the actions or omissions taken by West Bend in settling the UM claim raised a performance question under the contract. They therefore argued the law of the place of performance should govern the action. They contended this occurred in Florida. West Bend asserted that the question of whether it acted in bad faith is a substantive one which must be determined by the law of the place of contracting; i.e., Minnesota. West Bend also argued that Minnesota law also applied. The seminal and only Florida case that discusses the applicable choice of law principle in bad faith actions is Government Employees Insurance Company v. Grounds, 332 So. 2d 13

5 Page 5 (Fla 1976). The Higginses relied on Grounds, and the federal cases applying it, to argue the place of performance rule applies to all bad faith actions. They argued the place of performance in this case was Florida because that is where West Bend defended, maintained and mediated the Higginses' original action. Grounds involved a third-party bad faith claim brought by the insured tortfeasor against the insurer for failing to defend the insured in Florida in good faith. The insurer's conduct left the insured exposed to excess liability. The Higginses case involved a first-party claim brought by the injured insureds to obtain UM benefits allegedly due to them under their policy. In settling the UM claim, West Bend operated under the terms of its contract with the Higginses, irrespective of location, and any breach stemming from their conduct presents an issue more akin to coverage. Because West Bend's refusal to tender UM benefits limits presented a substantive question, rather than a performance-based one, the 5th DCA stated the law to be applied was the law of Minnesota, where the contract was executed. The 5th DCA further commented that even if the law of the place of performance applied because West Bend s refusal to settle pertained to a performance question, it held the insurer s performance was due in Minnesota, not Florida. The conduct that gave rise to the alleged bad faith was West Bend's failure to pay the desired UM benefits to the Higginses, who were Minnesota residents. Payment was allegedly due to them in Minnesota, not Florida. The 5th DCA also considered the interest factors set forth in the Restatement (Second) of Conflict of Laws, section 6 (1971), to determine which state's interest was most significant. The 5th DCA stated that Florida has no interest in a bad faith action between a foreign driver and foreign corporation. To the contrary, Florida has an interest in the stability of contractual arrangements. JLH/GQD/tsr/rmm/keo