LEGAL UPDATE. January 2007

Transcription

1 LEGAL UPDATE January 2007 GOODMAN MCGUFFEY LINDSEY & JOHNSON, LLP Atlanta Office: Orlando Office: 2100 Tower Place Suite Peachtree Rd., NE 1245 West Fairbanks Ave. Atlanta, GA Winter Park, FL Telephone (404) Telephone (407) Facsimile (404) Facsimile (407)

2 David Abercrombie Sharif R. Cheatham James F. Cook, Jr. Robert M. Darroch Brian C. Dowling Fred R. Green Joe David Jackson Adam C. Joffe Kraig N. Johnson Samantha R. Johnson T. Jeffery Lehman Edward H. Lindsey, Jr. Robert A. Luskin C. Wade McGuffey, Jr. Scot G. Nimmo Abhishek Shah Jeff K. Stinson Brian D. Tadros Julia A. Teske Elliot D. Tiller Ashley D. Witzigreuter Constance B. Woods Teri Alpert Zarrillo New Georgia Supreme Court Ruling Revives Asbestos Lawsuits Pending During the Passage of Tort Reform by Robert M. Darroch and Adam C. Joffe On April 12, 2005, the eagerly anticipated Tort Reform Bill was signed by Georgia s Governor, Sonny Purdue. The much publicized change to medical malpractice liability, offers of judgment and the abolishment of joint and several liability grabbed the headlines; however, the ripples of change have been felt in other areas as well. Specifically, thousands of pending asbestos suits had been virtually dead docketed pending resolution of several Cobb County suits consolidated on appeal to Georgia s Supreme Court concerning the Tort Reform Bill s application of the new asbestos law to pending suits. I. The New Asbestos Statute The current statute can be found at O.C.G.A O.C.G.A (b) requires that a plaintiff show asbestos or silica was a substantial contributing factor 1 in the medical condition that is alleged to have occurred. The law was to apply to any claims filed on or after April 12, 2005 as well as any pending actions. Of Counsel Judy Farrington Aust William S. Goodman Edwin L. Hamilton William Davis Hewitt 1 Compare to the old requirement that plaintiff s must prove that asbestos was a contributing factor only. DaimlerChrysler Corp. v. Ferrante, 2006 WL Ga. Nov. 20, LEGAL UPDATE is a review of recent judicial and legislative developments in areas affecting the insurance claims community. It is not the intention of LEGAL UPDATE to provide an exhaustive report on all cases relevant to insurance defense or to offer legal advice. Readers should not rely on cases cited in LEGAL UPDATE without checking the current status of the law. LEGAL UPDATE was created for clients of Goodman McGuffey Lindsey & Johnson, LLP and the possibility of circulation beyond the firm's clientele should not be construed as advertisement. 1

3 For pending actions, O.C.G.A directs that a plaintiff s action will be dismissed in 180 days unless: (a) the parties stipulate no less than 6o days prior to trial that plaintiff has made a prima facie case; or (b) the trial court can enter an order that the plaintiff can make a prima facie case so long as: i. no less than 60 days prior to the start of trial, the plaintiff files and serves medical documentation establishing prima facie evidence of physical impairment; ii. iii. iv. within 30 days service of the medical documentation, defendant has an opportunity to oppose plaintiff s position; if defendant does not oppose plaintiff s position within 30 days, the court will determine if the plaintiff can meet its burden; if defendant does oppose plaintiff s position, plaintiff has 10 days to reply; and v. the court will make a decision based on the documentation filed with the court. The trial court may hold a hearing at its own discretion, but there is no live testimony permitted. If the trial court decides plaintiff cannot make its case, the trial court dismisses the case without prejudice; or (c) if trial was scheduled to begin before June 11, 2005, the trial court can shorten the deadlines before trial commences. O.C.G.A (a) (1)-(3). For claims filed after April 12, 2005, the plaintiff is required to file a medical affidavit and supporting documentation setting forth medical findings necessary to establish physical impairment. O.C.G.A (b). The Code goes on to set out the procedure for defendants to oppose plaintiff s position, much in the same way as is set out in O.C.G.A (a). The legislature also limited discovery by permitting discovery only on the issue of physical impairment, until the trial court enters an order that the plaintiff can make his/her prima facie case for physical impairment. O.C.G.A The alternative is to request the trial court order the parties can conduct discovery prior to the showing of physical impairment. Id. II. The New Supreme Court of Georgia Decision On November 20, 2006, the Supreme Court of Georgia published the decision that addresses whether the new statute applies to cases that were filed prior to its enactment. The Supreme Court of Georgia consolidated the following cases: Daimler Chrysler Corp. et al. v. Ferrante et al., Georgia Pacific Corp. et al. v. Mitchell et al., Georgia Pacific Corp. et al. v. Hall et al., Georgia Pacific Corp. et al. v. Odum et al., Georgia Pacific Corp. et al. v. Etress et al., and 2

4 Georgia Pacific Corp. v. Hasberry et al.. The consolidated cases were all pending in the State and Superior Court of Cobb County. The plaintiffs contested the constitutionality of the new statute claiming the proof that the exposure to asbestos was a substantially contributing factor in their medical condition requirement of the statute added a new element to their cause of action, something that cannot be done to a pending suit. On the other hand, the defendants all argued that the cause of action remained the same, and the change was a procedural requirement and could be applied to pending cases. According to the Supreme Court, the legislature s requirement that asbestos be a substantially contributing factor instead of just a contributing factor changed the cause of action and was thus a substantive change and not a procedural change. Therefore, the law could not be applied retroactively, meaning it cannot be applied to pending cases. The Supreme Court of Georgia further held that because the new language was substantially intertwined with the procedural changes to the statute, the entire statute does not apply to pending cases. In the last paragraph of the opinion, the Supreme Court of Georgia did not address whether the procedure for determining whether asbestos was a substantially contributing factor violated due process. So, the Supreme Court s decision appears limited in its application to those suits pending at the time the new asbestos statute was enacted. III. Its Affect The Supreme Court of Georgia saved thousands of pending cases certain to be dismissed by the new statute. It is clear from the language in the new asbestos statute that Georgia s Legislature was intent on cleaning up the various counties clerk s offices of the old, pending asbestos suits. Not only does the new statute make it more difficult for an individual to file and maintain an asbestos suit, but the statute was specifically tailored to apply the changes to pending suits. It basically gave Plaintiffs in pending suits six months to shape up or ship out. Instead, now that Supreme Court of Georgia found the statute unconstitutional, Georgia s legislature will need to look for a different alternative, such as creating a new, purely procedural requirement in order to have any affect on the current backlog. 3

5 CASE NOTES Georgia Liability EXCUSABLE NEGLECT/ABUSE OF DISCRETION/DEFAULT JUDGMENT: It is not excusable neglect to fail to file an answer after forwarding the complaint to your insurance company assuming it has been received and that an answer would be filed. The insured should follow up to confirm receipt before relying on the insurer to file an answer. Williams v. City of Atlanta, 2006 WL (GA. App.), decided June 16, Annette Williams sued the City of Atlanta (the City) for injuries she allegedly received from a slip and fall at the Atlanta airport. She filed her lawsuit on March 14, 2005 and served the City on March 24, The City of Atlanta legal department mailed the Complaint to its insurance company. The City failed to file an answer, and on May 23, 2005, Williams filed a Motion for Default Judgment which the trial court granted. Almost one month later, the City moved the trial court to set aside the default judgment and permit the late filing of the answer, arguing that its failure to file the answer was due to excusable neglect. The trial court granted the City s motion and Ms. Williams appealed on the following grounds: (1) the City failed to present a meritorious defense; and (2) the City failed to establish excusable neglect. Based on O.C.G.A (b), a trial court may open default for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from the all the facts, shall determine that a proper case has been made for the default to be opened. Before the trial court can open default, the Defendant must first: (1) make a showing under oath; (2) offer to plead instanter; (3) announce ready to proceed with trial; and (4) set up a meritorious defense. On appeal, the City claimed that it forwarded the complaint to its insurer upon receipt. However, the insurer had no record of receiving the complaint and failed to file an answer. The City argued that the factual circumstance of its case amounted to excusable neglect. The Court of Appeals pointed out that the City failed to follow up with the insurer to confirm receipt of the answer and did nothing to make sure the insurer received the complaint or filed an answer. The Court of Appeals emphatically held, [s]uch inaction, especially by a law department, cannot constitute excusable neglect. SERVICE OF PROCESS: When the statute of limitation expires and a Defendant raises the issue of defective service in his answer, the Plaintiff must act with the greatest possible diligence in order to serve the Defendant or risk dismissal of the complaint. Kelley v. Lymon., 279 Ga.App. 849, decided June 16, Plaintiff Tom Kelley filed a lawsuit for personal injuries she sustained in a June 2001 motor vehicle accident with Defendant Garrett Lymon. The suit was filed one month before the two-year statute of limitation expired. The sheriff was unable to properly serve Defendant since he moved without a forwarding address. Defendant answered the complaint but raised the defense of insufficient service of process. Defendant even served discovery requests on Plaintiff, all the time standing by his claim of insufficient service. Plaintiff hired a private investigator to locate Defendant, but she still could not find him. Plaintiff noticed Defendant s deposition, but Defendant filed a motion for protective order which was granted by the trial court because Plaintiff had not served the complaint. Plaintiff served discovery requests on Defendant in an effort to obtain his contact information, but he did not respond. Fifteen months after the expiration of the statute of limitation, the trial court denied 4

6 Plaintiff s motion to compel Defendant s discovery responses and dismissed the complaint. Plaintiff appealed the decision. The law in Georgia is well-established that in order to toll the statute of limitation after the timely filing of a complaint, a Plaintiff must show he acted in a reasonable and diligent manner in attempting to effectuate proper service. When the statute of limitation expires and a Defendant raises the defense of defective service in his answer, the Plaintiff must act with the greatest possible diligence to serve the Defendant or risk dismissal of the case. In this case, the record revealed Plaintiff did little to attempt service after her initial efforts failed. Instead of diligently pursuing service, Plaintiff sought to have the trial court compel Defendant s deposition, thereby forcing Defendant to come to her to perfect service. Plaintiff s attempt to shift the burden of her search onto the trial court was deemed inappropriate and failed to show the greatest possible diligence on her part to serve Defendant. The Court of Appeals affirmed the decision and found the trial court properly exercised its discretion in dismissing Plaintiff s complaint. This case was successfully defended in the trial court and the Court of Appeals by Goodman McGuffey Lindsey & Johnson, LLP attorney Adam C. Joffe. AFFIDAVITS/NOTARY ATTESTATIONS: In a professional malpractice action, the expert s affidavit does satisfy the requirements of O.C.G.A even when the commission of the notary attesting to the affidavit has expired. Thomas et al. v. Gastroenterology Associates of Gainesville, P.C., 280 Ga. 698, decided July 6, In December, 2003, Plaintiff Lois Thomas filed suit against Gastroenterology Associates of Gainesville, a doctor and a hospital in connection with her husband s death. As required by O.C.G.A , Plaintiff attached to her complaint an affidavit from a licensed doctor in support of her claim of negligence. The affidavit was signed before a notary public on October 28, Defendants answered the complaint and contemporaneously included a Motion to Dismiss. Defendants argued that the doctor s affidavit was invalid because the notary public s commission had expired on October 8, 2003, twenty (20) days before the attestation of the affidavit. O.C.G.A requires that a Plaintiff alleging professional malpractice attach an affidavit from an expert competent to testify and detailing at least one negligent act or omission as the basis for his claim. O.C.G.A (a). Georgia law allows a Plaintiff to cure an alleged defect in the affidavit by amendment within thirty (30) days of a motion alleging that the affidavit is defective. See, O.C.G.A Plaintiff amended her alleged defective affidavit, but did so fifty (50) days after Defendants filed their Motion to Dismiss. The trial court dismissed the suit for failure to cure the defective affidavit.) Plaintiff appealed and the Georgia Court of Appeals.) The Georgia Supreme Court found that it is the notary s act of attestation which gives rise to the validity of the affidavit. Georgia law states that an officer de facto may be proved to be such by his acts, without the production of his commission or appointment. O.C.G.A Therefore, the Supreme Court found that the doctor s affidavit did satisfy the requirements of O.C.G.A and reversed. EXPERT AFFIDAVIT: The current version of O.C.G.A (a) requires that an expert affidavit be filed contemporaneously with the complaint in all medical malpractice actions and does not permit a grace period or extension of time to file the expert affidavit. Scott v. Martin, 280 Ga.App. 311, decided July 7, On January 26, 2003, Plaintiff John Martin was involved in a motor vehicle accident in Valdosta, Georgia. As a result of the collision, Plaintiff sustained injury to his right proximal humerus and right tibial plateau. On January 30, 2003, Plaintiff treated with Defendant James Scott, M.D., an orthopedic surgeon with Georgia Sports Medicine & Orthopedic Clinic, P.C. Plaintiff contended that Defendant negligently treated him and negligently ordered him to undergo aggressive physical therapy. 5

7 Plaintiff and Defendant entered into settlement negotiations in an attempt to resolve their dispute. In a letter dated January 13, 2005, Defendant gave permission to extend the time allowed for Plaintiff to sue him with regard to the alleged negligent treatment. That extension was until March 1, Plaintiff and Defendant were unable to reach a settlement on the alleged negligent treatment and Plaintiff filed suit on March 1, Notably, Plaintiff failed to file an expert affidavit contemporaneously with his lawsuit, relying on the previous version of O.C.G.A (b). The previous version of the statute allowed for a fortyfive (45) day grace period for filing the required expert affidavit and allowed extensions based on good cause. However, on February 16, 2005, the Governor of Georgia signed a new version of O.C.G.A (b). It repealed the automatic forty-five (45) day grace period to file a late expert affidavit (plus extensions for good cause ) if the statute of limitations for filing the lawsuit expired within ten days of filing suit. Defendant answered the lawsuit and argued that Plaintiff s lawsuit should be dismissed because he failed to file the required medical expert affidavit. In response, relying on the previous version of the statute, Plaintiff filed a request with the trial court to allow him another thirty days to file the expert affidavit. The trial court granted Plaintiff s request and Defendant appealed. The Georgia Court of Appeals found that the trial court s decision was incorrect and reversed. First, under the new version of O.C.G.A , which went into effect prior to Plaintiff s filing of the lawsuit, there is no grace period or extension possibility for good cause. Second, the January 13, 2005 letter from Defendant, extending the deadline for filing the lawsuit to March 1, 2005 did not mention or apply to the expert affidavit requirements. As a result, the trial court s decision was reversed and Plaintiff s lawsuit was dismissed for failure to file an expert affidavit contemporaneously with his complaint, pursuant to O.C.G.A CIVIL PROCEDURE/MOTIONS/ CONTRACTS/THIRD PARTY BENEFICIARIES: A motion to dismiss for failure to state a claim may be made orally at a hearing. One who is not a party to a contract may maintain an action on the contract only if he was clearly intended to directly benefit from the performance of the contract. Davis v. Phoebe Putney, 634 S.E.2d 452 (Ga. App.), decided July 13, 2006 Plaintiffs filed a class action against Defendant Phoebe Putney Memorial Hospital seeking damages and equitable relief as representatives of a class of all uninsured patients of Phoebe who were charged for medical care at rates exceeding the rates charged to insured patients or those with Medicaid or Medicare coverage. Defendant answered and moved to dismiss for failure to state a claim. Just prior to the hearing on Defendant s motion to dismiss, Plaintiffs amended their complaint, withdrawing the allegations of the first complaint and asserting a breach of contract claim based on the lease agreement between the hospital and the municipal hospital authority. At the hearing on Defendant s motion to dismiss, the parties presented argument on the merits as to each of the claims raised in the amended complaint. The trial court entered an order dismissing all of Plaintiffs claims. Plaintiffs appealed the court s order on the grounds that (1) the motion was not properly before the trial court since it was not made in writing and the parties had not briefed the issues and (2) Plaintiffs had standing to sue as a third-party beneficiary of the contract between the hospital and the county. The Court of Appeals affirmed. The Court rejected Plaintiffs first argument, that the motion to dismiss was not properly before the trial court, because a motion to dismiss for failure to state a claim may be made orally at a hearing. The Court held that it was incumbent on Plaintiffs to object if they were not afforded sufficient time to formulate a response to the motion. At the hearing, however, Plaintiffs made no objection to the trial court s consideration of the oral motion until after the hearing had concluded, and even filed a written brief in opposition to Defendant s motion at the trial court s instruction. Plaintiffs therefore waived any objection they may have had to the court s consideration of the oral motion and any claim of error on appeal. Addressing Plaintiffs second argument, the Court of Appeals held that Plaintiffs were not thirdparty beneficiaries to the contract because the 6

8 contract was not clearly intended to benefit Plaintiffs or their class directly. Although the contract may have benefited citizens and members of the general public indirectly, no intent was manifested in the contract to benefit a particular class of people directly or to compensate any member of the public for injurious consequences. Consequently, the Court of Appeals could not conclude that the contract was intended for the individual benefit of any Plaintiff in the class, and the class was therefore without standing to sue on the contract. PREMISES LIABILITY/STATIC CONDITION: When nothing obstructs or interferes with a customer s ability to see a static condition, the business owner is justified in assuming that the customer will see it and realize the risks involved. Rowland v. Murphy Oil USA, Inc., 2006 WL (Ga. App.), decided July 13, Plaintiff Gladys Rowland filed suit against Defendant Murphy Oil USA gas station after she tripped and fell over an advertising sign near the gas pump and broke her wrist. On the day of her fall, Plaintiff pumped her gas, walked past an advertising sign to the cashier s window, and paid for her gas. After paying, she walked back toward her car and tripped over the sign. Plaintiff claimed that the gas station negligently placed the sign in the path of customers and failed to warn her of the hazard. The gas station manager testified that the station had four of these signs, one placed at each pump. He stated the signs stuck out like sore thumbs, and had been there almost since the gas station opened. Plaintiff had been to the gas station multiple times before her fall, and she had parked on the other side of the same pump island where she fell. In Georgia, business owners are liable to their customers for injuries caused by the owners failure to exercise ordinary care to keep their premises safe. Business owners are not the insurers of their customers safety, however. The business owner is only liable to a customer for an injury if the business owner has superior knowledge of a risky condition. Georgia law has distinguished between an emergency condition and a static condition which is not inherently dangerous. With respect to static conditions, when nothing obstructs of interferes with the customers ability to see the condition, the owner can assume that the customer will see it and realize the risks involved. If a customer has been to the premises on a previous occasion and has gotten around it without harm, then the customer cannot recover from an injury on a subsequent visit to the same location. In this case, the Court determined that the sign was a static condition because it did not change and was not inherently dangerous. There was no evidence that Defendant had obscured or concealed the sign. In fact, the Court determined that because it was an advertisement, it was meant to attract customers attention. Plaintiff had been to the gas station previously, had parked at the same island, and had walked around the sign on the way to pay for the gas without harm. Because she had been to the gas station in the past and had gotten around the sign without an injury, Plaintiff could not recover for her broken wrist from tripping and falling over the sign. DISMISSAL FOR TIME BARRED ACTION/FRIVOLOUS APPEAL. An action for personal injuries must be brought within two years after the right of action accrues, and timely service must be perfected. Crane v. Lazaro, 2006 WL (GA. App.), decided July 27, Pro se Plaintiff Eugene Crane was involved in an automobile accident on October 11, On February 9, 2005, Plaintiff filed suit against Defendant Luis Lazaro, the alleged negligent driver, and his insurer, Nationwide, claiming that he suffered personal injuries as a result of the wreck. The complaint was never served on Defendant but service was attempted on Nationwide by forwarding a copy of the complaint via certified mail to a local Nationwide salesman. After thirty days had passed, Plaintiff filed a Motion for Entry of Default Judgment which the trial court denied on the ground 7

9 that Nationwide was improperly served, and that no direct action was possible against the liability insurer for this type of case. On November 9, 2005, Nationwide filed a Motion to Dismiss which was granted on the grounds that Plaintiff had failed to serve Defendant prior to the expiration of the statute of limitations. Plaintiff appealed, arguing that the dismissal violated his rights to a jury trial under the 7 th Amendment of the U.S. Constitution and his rights to the access of the courts under the Georgia Constitution 1983 Art. I, I, Par. XII but provided no legal support for his position. The Court of Appeals denied the appeal as meritless because the 7 th Amendment to the U.S. Constitution does not apply to state court actions. Even if Plaintiff s claims were applicable, his constitutional rights were not infringed because the trial court correctly dismissed Plaintiff s complaint on the grounds that it was time barred under O.C.G.A The mere filing of a complaint does not commence suit. Instead a Plaintiff must file the complaint and effect proper timely service as required by the law. Plaintiff attempted to file suit against Defendant but was unable to properly perfect service in a timely manner, and his complaint was again dismissed. Plaintiff once again appealed the dismissal which was quickly denied by the appellate court. With its brief to the Court of Appeals, Nationwide filed a Motion for Sanctions Although Nationwide s motion was contrary to Court of Appeals Rule 41(b), the Court of Appeals utilized Court of Appeals Rule 15(b). which allowed it to impose a penalty for a frivolous appeal with or without a motion by a party. The Court held that since Plaintiff had unsuccessfully appealed on the very same issues before, there was no reasonable basis for believing his second appeal would result in reversal of the trial court s ruling, and therefore, the Court ordered a frivolous appeal penalty of $1, against Plaintiff. UNINSURED MOTORIST COVERAGE: Umbrella insurance policies that provide automobile or motor vehicle liability coverage are subject to the provisions of the Georgia Uninsured Motorist Act (O.C.G.A ). Abrohams v. Atlantic Mutual Insurance Agency, 2006 WL (Ga.App.), decided August 31, On December 28, 202, Richard Abrohams and his minor son David ( Plaintiffs ) were injured in an automobile accident with an uninsured motorist. David Abrohams suffered permanent injuries; his total claim equaled $1,450,000. Plaintiffs were the named insureds on both an automobile policy and a personal umbrella policy issued by Defendant Atlantic Mutual. The umbrella policy provided $1 million in excess liability coverage and covered Plaintiffs house and two cars. After the accident Plaintiffs made a demand for uninsured motorist (UM) benefits under both policies. Defendant filed a declaratory judgment action, contending that the umbrella policy did not provide UM coverage (in fact, that the policy specifically excluded it). Plaintiffs filed a counterclaim, alleging that the Georgia Uninsured Motorist Act, O.C.G.A , required umbrella policies to provide UM coverage. Defendant filed a Motion for Summary Judgment on three grounds: (1) O.C.G.A does not apply to umbrella policies; (2) the umbrella policy specifically excluded UM coverage; and (3) even if O.C.G.A applied to umbrella policies, the umbrella policy was a renewal policy and exempt from the UM statute. The trial court granted summary judgment in favor of Defendant. The Court of Appeals reversed the trial court s decision, holding that umbrella policies are subject to the provisions of O.C.G.A The statute provides: (a)(1) No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured or for injury to or destruction of property of an insured under the named insured's policy sustained from the owner or operator of an uninsured motor vehicle... The Court of Appeals interpreted automobile liability policy and motor vehicle liability policy as any policy providing any coverage to an automobile or a motor vehicle. Therefore, an umbrella policy that provides coverage for an automobile (as Plaintiffs policy did) is subject to the provisions of O.C.G.A The Court of Appeals then addressed the issue of whether Plaintiffs umbrella policy was exempt from the provisions of the UM statute because it was a renewal policy. Under O.C.G.A (a)(3), UM coverage is not required (1) where the insured rejects the coverage in writing; or (2) where the policy is a renewal policy and the insured had previously rejected the coverage in a prior policy issued by the same insurer. An insurer does not have 8

10 to increase UM coverage in a renewal policy from the amount shown on the declarations page if coverage existed prior to July 1, The Court of Appeals held that the renewal exceptions were not applicable in this case because Defendant had never previously offered UM coverage on its umbrella policy and Plaintiffs had never previously rejected UM coverage under the umbrella policy. Finally, the Court of Appeals held that because umbrella policies are subject to the requirements of O.C.G.A , Defendant could not exclude UM coverage from the policy. Florida Liability PRIVILEGE: Plaintiff may reclaim psychotherapist privilege by withdrawing claim for mental anguish. Garbacik v. Wal-mart Transp., LLC, 932 So.2d 500 (Fla. 5 th DCA 2006), decided June 16, Plaintiff was involved in a motor vehicle accident and brought suit alleging, among other damages, mental anguish. He underwent a neuropsychological exam and disseminated the resulting report, which reflected pain disorder, depression and post-concussive syndrome, to the defendants. Plaintiff then testified about the examination and report. However, when Defendant set the neuropsychologist s deposition, Plaintiff withdrew the mental anguish claim and moved for a protective order. The court allowed the withdrawal but denied the protective order and Plaintiff appealed. The Plaintiff argued the information sought was protected by the psychotherapist patient privilege of F.S That statute includes an exception when patient relies upon the condition as an element of his or her claim. The court found Plaintiff did initially waive that privilege by claiming mental anguish, but they then considered whether that privilege could be recovered by withdrawing the mental anguish claims. They held that once the Plaintiff s mental anguish was no longer in issue, his psychological state became irrelevant. The court rejected Defendant s argument that the Plaintiff s psychological state was relevant to his claims for loss of enjoyment of life or as impeachment. The court suggested that accepting the impeachment argument would eliminate the privilege entirely. Accordingly they reversed the trial court. FRAUD: Plaintiff s misstatements, for which the sanction of dismissal might have been upheld, were not sufficient to support a judgment notwithstanding verdict. Johnson v. Swerdzewski, 935 So.2d 57 (Fla. 1 st DCA 2006), decided July 31, Plaintiff brought medical malpractice action after dentist s needle broke off in Plaintiff gum. At trial Plaintiff s testimony varied significantly from that in pretrial discovery regarding his symptoms, physician discussions and prior dental care. At the close of Plaintiff s case, Defendant moved for judgment notwithstanding verdict (JNOV) which the court deferred to after the trial. The jury returned a verdict in favor of Plaintiff on which the court entered a JNOV for Defendant based on fraud on the court. Plaintiff appealed. The defense argued that Plaintiff s testimony at and before trial constituted a fraud on the court and cited as support the many fraud sanction cases. The First District Court considered the standard of review for a court order of sanctions and pointed out that such orders (awarding sanctions) are reviewed based on an abuse of discretion standard. Under that standard great weight is given to the judge s determination and ruling. They contrasted that standard with the almost opposite standard for review of a JNOV determination. In reviewing a JNOV the appellate court must view all 9

11 evidence in a light most favorable to the non-movant. In other words the appellate court looks for a reason to uphold a sanction and to uphold a jury verdict (and thereby reverse a JNOV). The appellate court reviewed the evidence in the case at hand and found the jury could have excused Plaintiff s misstatements, found they were unintentional or were not significant. Accordingly the appellate court reversed the JNOV and reinstated the jury verdict for the Plaintiff. LIENS: F.S (11)(f)(1) requires full payment of a Medicaid lien as long as the payment does not take more than half of the recovery. Ross v. Agency for Health Care Admin.,--- So.2d ---- (Fla. 3 rd DCA 2006), decided August 16, Decedent was involved in a motor vehicle accident resulting in his hospitalization for several weeks before his death. Medicaid paid $168, for those hospital services and received an automatic lien under F.S (6)(c). Decedent s estate brought a wrongful death action against the employer of the at fault driver, eventually recovering $900,000. The personal representative then attempted to allocate the recovery, allocating Medicaid just 25% of the total Medicaid lien. The trial court granted the allocation with the exception of ordering payment of 100% of the lien. The estate appealed. The District court found the Florida s Wrongful Death Statute does not alter the payment requirements of F.S and Medicaid s lien did not take more than half of the estates recovery. They found Medicaid was entitled to 100% of its lien and upheld the trial court s ruling. INTOXICATION: F.S (2) intoxication defense requires trier of fact determination of liability and therefore did not support a motion for summary judgment. Pearce v. Deschesne, 932 So.2d 640 (Fla. 4 th DCA 2006), decided July 12, Tree trimmer and homeowner who hired him consumed half a dozen alcoholic drinks one of which was filled to the top with vodka, shortly before the tree trimmer fell out of the tree. The trimmer brought suit against the drink serving homeowner, but in deposition, the trimmer admitted he was drunk when he fell. Defendant moved for summary judgment under F.S (2). That statute holds in part, In any civil action, a Plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that at the time the Plaintiff was injured: (a) The Plaintiff was under the influence of any alcoholic beverage or drug to the extent that the Plaintiff s normal faculties were impaired ; and (b) as a result of the influence of such alcoholic beverage or drug the Plaintiff was more than 50 percent at fault for his or her own harm. The trial court granted the summary judgment and Plaintiff appealed. The appellate court first noted that the statute turned on the finding of the trier of fact, not the court. They went on to state that where there is an issue of comparative negligence, summary judgment is rarely appropriate. In accord with that reasoning the appellate court reversed the summary judgment. PIP / UM: Carrier s payment of PIP benefits was not admissible to establish propriety of medical benefits claimed in a UM action. USAA Cas. Ins. Co. v. Sheltone,932 So.2d 605(Fla. 2 nd DCA), decided June 30, Insured sued USAA who provided both their PIP and UM coverage for a motor vehicle accident. The sole issue at trial was whether Plaintiff s medical bills were reasonable necessary and related to the accident. At trial the USAA PIP adjuster testified they paid reasonable and necessary expenses related to the accident. Plaintiff suggested in closing that the UM bills were reasonable, necessary and related because the PIP bills had been paid. On appeal the District court found evidence of an insurer s payment of PIP benefits is not relevant, and therefore is not admissible, to prove the propriety of claimed medical damages in a UM action. They noted however that the PIP payments 10

12 (as opposed to the standard used to determine whether they should be paid) would be admissible to establish a setoff. The court then evaluated the impact of the PIP evidence on the outcome of the case and found the admission, in this case, to be harmless error. DUTY TO WARN: Supplier of asbestos to a manufacturer had a duty to warn ultimate user of the dangers of the product component. McConnell v. Union Carbide Corp. --- So.2d ----(Fla. 4th DCA 2006), decided June 28, Union Carbide supplied Calidria Asbestos to Georgia-Pacific for use in a drywall joint compound. Plaintiff was a drywall carpenter who suffered from asbestosis. The trial judge refused to give a products liability duty to warn instruction to the jury (FSJI PL4-PL5). Plaintiff appealed. The Fourth District court ruled the Calidria was not a raw material and was therefore a product capable of being defectively manufactured or designed. They then went on to consider several of the Restatement of Torts sections and Union Carbide Corp. v. Kavanaugh, 879 So.2nd 42 (Fla. 4 th DCA 2004). They approved of the Restatement s suggestion that, Since the care which must be taken always increases with the danger involved, it may be reasonable to require those who supply through others chattels which if ignorantly used involve grave risk of serious harm to those who use them to take precautions to bring the information home to the users of such chattels which it would be unreasonable to demand were the chattels of a less dangerous character. Applying the above suggestion to the case at hand the court held a supplier in the shoes of Carbide may not reasonably rely on an intermediary, no matter how learned it might be deemed. OWNER IMMUNITY: A New York judge has found 49 USC 30106, which provides vehicle lessor immunity in some circumstances, violates the Commerce Clause of the U.S. Constitution Article I, 8. Graham v. Dunkley,---N.Y.S.2d ----, 2006 WL , decided September 11, Plaintiff filed a complaint alleging she was involved in a Queens County, New York motor vehicle accident on 6/17/05 when she was hit by a vehicle owned by Nissan Infiniti, LT (NILT) and leased to another defendant. NILT moved to dismiss the complaint as barred by the Transportation Equity Act of 2005, 49 U.S.C That section states, in part, Section Rented or leased motor vehicle safety and responsibility. (a) In general. An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation or possession of the vehicle during the period of the rental or lease, if (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). The New York Trial court judge, in a lengthy, well reasoned opinion suggested that the U.S. Constitution divided legislative authority between the Federal and the State governments and that, Congress has no power to declare substantive rules of common law applicable in a state whether they be local in nature or general, be they commercial law or part of the law of torts. Erie R. Co. V. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed (1938). The Judge held that 49 USC invalidated a state liability law and was therefore an unconstitutional exercise of congressional authority under the Commerce Clause of the United States Constitution, Article I, 8. EDITORS NOTE: That code section, expressly states it applies only to actions commenced after its enactment (8/10/05), regardless of the actual loss date. Further the code makes an exception for state financial responsibility laws and indeed in Poole v. Enterprise Leasing Company of Orlando, not reported in So.2d, 2006 WL (3/9/06) a Florida Circuit Court applied that exception to allow a rental company liability case under F.S (9)(b) to proceed. 11

13 Georgia Workers' Compensation SUSPENSION OF BENEFITS FOR FAILURE TO COMPLY WITH MEDICAL TREATMENT: An Employer can require an employee to return to the authorized treating physician for an examination. Goswick v. Murray County Board of Education, et al., 2006 WL , decided September 1, Claimant sustained compensable knee injuries while working for the Employer. Employer provided the Claimant with medical treatment with Dr. Herndon, who following lengthy treatment, determined that absent a total knee replacement, there was no further treatment for him to offer Claimant, although he stated that Claimant could return to him when necessary. 18 months later the Employer requested that the Claimant return to Dr. Herndon for an updated evaluation. The Claimant refused and cited to O.C.G.A in arguing that he was not required to attend an examination by his authorized treating physician. The Employer filed a Motion with the Board seeking an Order compelling the Claimant to see Dr. Herndon. The ALJ ruled that Claimant s failure to see Dr. Herndon was unjustified, and ordered him to see Dr. Herndon. The Claimant refused, and thereafter the Employer filed a Motion seeking a suspension of the Claimant s income benefits. The ALJ found that the Claimant was required to attend the examination under O.C.G.A , and ordered that his benefits be suspended until he complied with the Board s Order. The full Board adopted the ALJ s findings, and the Claimant s appeal to Superior Court was affirmed by operation of law when a decision was not rendered within 20 days of the hearing. The Court of Appeals affirmed. The Court held that O.C.G.A authorized the Employer to require the Claimant to undergo an examination with his treating physician. Claimant attempted to argue that O.C.G.A applied only to independent medical examinations (IMEs), but the Court rejected that argument, holding that an Employer can require an employee to return to his treating physician as long as he is receiving compensation. RES JUDICADA: Failure to seek credit under O.C.G.A will result in issue being barred from future proceedings. Vought Aircraft Industries, Inc. et al. v. Faulds, 2006 WL , decided August 29, Claimant alleged that he sustained injuries to his right elbow while working for the Employer. The claim was originally denied and a hearing on compensability was held before an ALJ. Prior to the hearing Claimant received disability benefits for which the Employer sought a credit for pursuant to O.C.G.A However, the ALJ denied the Employer s request for a credit because they did not file a Form WC days prior to the hearing. After the decision, the Claimant s claim was designated as catastrophic. The Employer subsequently filed a Hearing Request alleging that the Claimant had undergone a change in condition for the better, that his injuries were no longer catastrophic, and that they should be entitled to a credit pursuant to O.C.G.A based on the disability benefits paid to the Claimant. At the second hearing the ALJ denied the Employer s request for reimbursement finding that their request was barred by res judicada. The Appellate Division reversed, and the Superior Court reversed the Appellate Division, finding that the ALJ was correct in applying the doctrine of res judicada. The Court of Appeals affirmed. The Court noted that the Employer knew that the Claimant was entitled to disability benefits at the time of the original hearing, and that since they failed to file a WC-243 within 10 days of the original hearing their 12

14 request for reimbursement was barred. When the credit issue is not timely raised prior to the original hearing, a future attempt to raise the issue after the initial award has been rendered is barred by res judicada. The Court further noted that although the reimbursement issue was not raised at the original hearing, it could and should have been raised, and therefore any future attempts to raise the issue were barred. CHANGE IN CONDITION/SUITABLE WORK AVAILABLE: To show the availability of suitable work, a rehabilitation counselor should identify jobs that fit within the claimant s background and experience. Korner v. Educ. Management Corp., 2006 WL , decided August 29, The claimant, Sherry Korner, sustained a compensable injury on February 21, 2001, while employed by Education Management Corporation (EMC) as a clinical therapist, when she was attacked by a student she was counseling. Although the claimant s physical injuries quickly healed, the claimant s psychological injuries prevented the claimant from continuing to work with individuals who have psychological problems. The claimant received temporary total disability benefits as a result of the attack and the injuries sustained. Since the attack, the claimant has not worked but, instead, enrolled in school. In August 2003, EMC requested a hearing, contending the claimant was no longer entitled to income benefits, or in the alternative, the claimant s temporary total disability benefits should be converted to temporary partial disability benefits. The ALJ determined the claimant had experienced a change in condition for the better, was capable of working, and that there was suitable work available. The claimant appealed the ALJ s decision to the appellate division. The appellate division affirmed the ALJ s findings in regards to the first two requirements; however, the appellate division found EMC had not carried its burden of proving that suitable work was available and reversed the ALJ. EMC appealed this decision to the superior court. The superior court held the appellate division erred in finding that EMC had not sufficiently established the availability of suitable work. The claimant appealed this decision to the Court of Appeals. The Court of Appeals reversed the superior court s holding and reinstated the decision of the appellate division that EMC failed to prove the availability of suitable work. The Court of Appeals relied on the testimony of the sole witness proffered by EMC, a rehabilitation counselor, on the issue of availability of suitable jobs. The rehabilitation counselor did not have a basis for her report. In addition to other discrediting items, the counselor testified that at the time of creating the report she did not know the rate of the claimant s pay at the time of the injury; and she identified the job of foreign student advisor when the claimant s disability stemmed from an attack perpetrated by a foreign student. Furthermore, most of the jobs identified by the counselor had requirements the claimant did not satisfy. The Court of Appeals also noted the appellate division s findings that EMC did not prove that suitable work was available is binding and conclusive if supported by any evidence. Because there was evidence to support the appellate division s findings, the Court of Appeals reversed the superior court s holding and claimant s disability benefits were not suspended. 13

15 Florida Workers' Compensation ATTORNEY FEES: Florida Statutes remains the sole method of awarding attorney fees for dates of accident after October 1, 2003, based on a statutory percentage of benefits secured. Campbell v. Aramark & Specialty Risk Services, 933 So. 2d 1255, decided July 24, 2006 Buitrago v. Landry s & ACE USA, 31 Fla. L. Weekly D2340, decided September 13, 2006 These cases are cited here together as both arising from a similar set of facts, and having an identical outcome. In both cases, the Claimant challenged an award of a percentage based statutory attorney s fee under Florida Statutes , for a post October 1, 2003 claim. In both cases, the Appellate Court adhered to its prior landmark decision in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506 (Fla. 1 st DCA 2006), rejecting any attempt to award a fee on a basis other than the statutory percentage formula. This issue has continued to be railed against by the Claimant s bar in Florida, and thus far the First District Court of Appeals has shown no signs of receding from the Lundy holding. Campbell and Buitrago are but the latest cases in that trend. However, the Court also continued a trend of certifying to the Florida Supreme Court the following question of great public importance: DO THE AMENDED PROVISIONS OF SECTION (1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY S FEE TO BE AWARDED A CLAIMANT? Thus far, the Florida Supreme Court has declined the invitation to address this question, although Campbell and Buitrago represent the third and fourth times that it has been certified. Accordingly, under the Lundy holding, remains viable, exclusive and constitutional. FRAUD: A Claimant may not be denied benefits for making false or misleading statements in a prior workers compensation claim. Paulson v. Dixie County Emergency Medical Services & Florida League of Cities, Inc., 31 Fla. L. Weekly D1969, decided July 26, 2006 The Claimant, a paramedic, claimed workers compensation benefits for three accidents occurring in three years 1999, 2000, and 2001, against the same instant Employer/Carrier. The 1999 and 2000 accidents were accepted as compensable and benefits were furnished without dispute. In the 2001 accident the Claimant alleged head, shoulder and back injuries, after a chair in which he was sitting collapsed under him. The Employer/Carrier denied compensability of this accident and injuries, giving rise to the current claim. In the course of discovery for the 2001 accident, the Employer/Carrier learned that Claimant had made false or misleading statements in connection with the 2000 accident, misrepresenting his physical capabilities while receiving temporary indemnity benefits. The Employer/Carrier asserted a fraud defense for the 2001 claim based on the false statements made to the same Employer/Carrier in the 2000 claim. At the trial level, the JCC denied benefits, finding that the Claimant had made false or misleading statements in violation of Florida Statutes (4)(b) and was barred from recovery. On appeal the Court reversed, citing the requirement in (4)(b) that the false or misleading statements be made in pursuit of benefits. The Court held that the bar to receipt of benefits by virtue of fraud was claim specific and that only false statements made in the claim at issue before the JCC could be considered. 14

16 FRAUD: Florida s fraud statutes, encapsulated in and (4), are constitutional. Weaver v. MBM & Traveler s Indemnity Co., 936 So. 2d 1032, decided August 22, 2006 At the trial level, the JCC determined that the Claimant had made false or misleading statements under Florida Statues (4)(b) and was barred from recovery of benefits by operation of Florida Statutes (4). On appeal, the Claimant challenged the constitutionality of the above statutes, alleging that they facially violated the Claimant s equal protection rights. The basis of the argument was that the Claimant was not afforded the same procedures and protections given to carriers for alleged violations of and that the penalties imposed on Claimants for such violations were more severe than those imposed on carriers. The Court affirmed, finding from the outset that it was uncertain if any classification scheme whatsoever was imposed by the statute. The Court also concluded that statutes were rationally related to a legitimate government objective of eliminating fraud. The constitutionality of the statutes was upheld. SETTLEMENT: A deceased claimant s personal representative may seek enforcement of a settlement reached by the claimant prior to his death, if the personal representative is able to perform the deceased claimant s end of the agreement. Gunderson v. School District of Hillsborough County & CNA Claims Plus, 31 Fla. L. Weekly D2339, decided September 13, The Claimant and the Employer/Carrier entered into a complete washout settlement agreement, by which the Employer/Carrier would pay $52,808, including all attorney s fees and costs. The Claimant also agreed to execute a general release and termination agreement. The settlement was agreed by the parties to become effective and binding upon entry of the order by the JCC approving the attorney s fees. The Claimant passed away before the general release and termination agreement could be executed. However, the Claimant s widow, and personal representative, obtained an order from the JCC approving the attorney s fees, and executed the general release and termination agreement on her deceased husband s behalf. The Employer/Carrier refused to pay the settlement proceeds, arguing that the failure by the Claimant to execute the documents prior to his death negated the agreement. At the trial level, the Claimant s personal representative argued that her execution of the documents amounted to performance on the contract, obligating the Employer/Carrier to perform their part. The JCC ruled that the agreement was unenforceable, since the Claimant had not personally executed the documents prior to his death. On appeal, the Court reversed, focusing on the explicit language of the settlement agreement itself. The Court determined that the only contingency built into the agreement was the order approving attorney s fees. Once this was obtained by the personal representative the agreement became, by its own language, effective and binding. At that point, the Court reasoned, the only question remaining was the ability of the personal representative to execute the general release and termination agreement on the deceased Claimant s behalf. The Court noted that under Florida law, the personal representative would be the only individual empowered to litigate claims on the decedent s behalf. Accordingly, her execution of the documents would be legally identical to the Claimant s execution of same prior to his death. On this basis, the Court determined that the personal representative had performed under the contract, and that the Employer/Carrier was bound to perform as well. 15

17 COVERAGE: Construction Industry as defined by statute, includes employers engaged in some categories of repairs and maintenance, as well as more traditional categories of construction. Ficocelli v. Just Overlay, Inc, 932 So. 2d 1230, decided July 11, The Claimant was injured while working on the roof of a hanger at the Clearwater/St. Petersburg Airport, while applying a sealant coating. He fell through a roof panel to the ground, a distance of roughly 40 feet, sustaining severe injuries. The Employer was engaged in the business of resealing and restriping tarmacs, sealing and coating roofs on hangars, repairing damaged roof structures, pressure washing hangars, and cleaning up debris. The Employer had not secured workers compensation coverage, arguing that they did not fit under the criteria of the Construction Industry and hence were not obligated to furnish coverage as they employed less than four employees. Florida Statutes (17)(b)(2). The Claimant argued that the Employer was, in fact, in the construction industry and was obligated to have coverage and furnish benefits. At the trial level the JCC ruled that the Employer made only minor repairs to existing facilities and was not engaged in the sort of substantial improvement which would bring them under the definition of Construction Industry as set forth in Florida Statutes (8). On appeal, the Court took a broader approach, utilizing the Florida Construction Industry Classification Codes in Rule 69L-6.021, and concluding that the Employer s activities did result in substantial improvement by rendering the facilities usable and operable. The Court reversed, determining that the Employer should have furnished coverage to its employees and was obliged to provide benefits to the Claimant. 16

18 TABLE OF CONTENTS LEAD...1 CASE NOTES...4 INDEX OF CASES GEORGIA LIABILITY AFFIDAVITS/NOTARY ATTESTATIONS...5 Thomas et al. v. Gastroenterology Associates of Gainesville, P.C., 280 Ga. 698, decided July 6, 2006 CIVIL PROCEDURE/MOTIONS/CONTRACTS/THIRD PARTY BENEFICIARIES...6 Davis v. Phoebe Putney, 634 S.E. 2d 452 (Ga. App.), decided July 13, 2006 DISMISSAL FOR TIMED BARRED ACTION/FRIVOLOUS APPEAL...7 Crane v. Lazaro, 2006 WL (GA.App), decided July 27, 2006 EXCUSABLE NEGLECT/ABUSE OF DISCRETION/DEFAULT JUDGMENT:...4 Williams v. City of Atlanta, 2006 WL (GA. App), decided June 16, 2006 EXPERT AFFIDAVIT...5 Scott v. Martin, 280 Ga.App. 311, decided July 7, 2006 PREMISES LIABILITY/STATIC CONDITION...7 Rowland v. Murphy Oil USA, Inc., 2006 WL (Ga.App.), decided July 13, 2006 SERVICE OF PROCESS...4 Kelley v. Lymon, 279 Ga.App. 849, decided June 16, 2006 UNINSURED MOTORIST COVERAGE...8 Abrohams v. Atlantic Mutual Insurance Agency, 2006 WL (Ga.App), decided August 31, 2006 FLORIDA LIABILITY DUTY TO WARN...11 McConnell v. Union Carbide Corp., ---So.2d---- (Fla. 4 th DCA 2006), decided June 28, 2006 FRAUD...9 Johnson v. Swerdzewski, 935 So.2d 57 (Fla. 1 st DCA 2006), decided July 31, 2006 INTOXICATION Pearce v. Deschesne, 932 So.2d 640 (Fla. 4 th DCA 2006), decided July 12, 2006 LIENS...10 Ross v. Agency for Health Care Admin., ---So.2d---- (Fla. 3 rd DCA 2006), decided August 16, 2006 OWNER IMMUNITY...11 Graham v. Dunkley, ---N.Y.S.2d----, 2006 WL , decided September 11, 2006 PIP/UM...10 USAA Cas. Ins. Co. v. Sheltone, 932 S.2d 605 (Fla. 2 nd DCA), decided June 30, 2006 PRIVILEGE...9 Garbacik v. Wal-mart Transp., LLC, 932 So.2d 500 (Fla. 5 th DCA 2006), decided June 16,

19 GEORGIA WORKERS COMPENSATION CHANGE IN CONDITION/SUITABLE WORK AVAILABLE...13 Korner v. Educ. Management Corp., 2006 WL , decided August 29, 2006 RES JUDICATA...12 Vought Aircraft Industries, Inc., et al. v. Faulds, 2006 WL , decided August 29, 2006 SUSPENSION OF BENEFITS FOR FAILURE TO COMPLY WITH MEDICAL TREATMENT...12 Goswick v. Murray County Board of Education, et al., 2006 WL , decided September 1, 2006 FLORIDA WORKERS COMPENSATION ATTORNEY FEES...14 Buitragi v. Landry s & ACE USA, 31 Fla. L. Weekly D2340, decided September 13, 2006 ATTORNEY FEES...13 Campbell v. Aramark & Specialty Risk Services, 933 So.2d 1255, decided July 24, 2006 COVERAGE...16 Ficocelli v. Just Overlay, Inc., 932 So.2d 1230, decided July 11, 2006 FRAUD...14 Paulson v. Dixie County Emergency Medical Services & Florida League of Cities, Inc., 31 Fla. L. Weekly D1969, decided July 26, 2006 FRAUD...14 Weaver v. MBM & Traveler s Indemnity Co., 936 So.2d 1032, decided August 22, 2006 SETTLEMENT...15 Gunderson v. School District of Hillsborough County & CNA Claims Plus, 31 Fla. L. Weekly D2339, decided September 13,