Florida Supreme Court Holds that Pregnancy Discrimination is Prohibited Under State Law

The Florida Supreme Court held today in Delva v. Continental Group, Inc. (SC12-2315), that the Florida Civil Rights Act (FCRA), sections 760.01-760.11, Fla. Stat., which in part prohibits discrimination in employment on the basis of sex, encompasses discrimination on the basis of pregnancy.

A previous post provides a background to the case and summarizes oral arguments.

The uncertainty as to whether pregnancy discrimination was covered under FCRA arose from the fact that FCRA and its predecessor were modeled in part on Title VII of the Federal Civil Rights Act of 1964, which was found to not prohibit discrimination on the basis of pregnancy as a per se form of sex discrimination by the U.S. Supreme Court in General Electric Co. v. Gilbert, 429 U.S. 125, 145 (1976). Title VII was subsequently amended by Congress to specifically include pregnancy discrimination as a form of sex discrimination, while FCRA’s predecessor statute was not.

Florida’s Third and Fourth District Courts of Appeal were divided on how to interpret this revision to Title VII and its impact on FCRA. The Fourth District Court of Appeal in Carsillo v. City of Lake Worth found that since the Congressional amendment to Title VII was presented as clarifying the original intent behind the law, and since FCRA is patterned after Title VII, FCRA encompasses discrimination on the basis of pregnancy as well. 995 So.2d 1118 (Fla. 4th DCA 2008). By contrast, the Third District Court of Appeal in Delva v. Continental Group, Inc., held below in this case that FCRA does not cover pregnancy discrimination because it was not modified to include it explicitly, as was Title VII. 96 So.3d 956 (Fla. 3d DCA 2012).

In considering the scope of the prohibition on sex discrimination under FCRA, Justice Pariente, writing for the majority, found that “the statutory phrase making it an “unlawful employment practice for an employer . . . to discriminate . . . because of . . . sex,” as used in the FCRA, includes discrimination based on pregnancy, which is a natural condition and primary characteristic unique to the female sex.” (Op. at 2).

The Court pointed out that the expressed legislative intent is for FCRA to be interpreted liberally. Section 760.01(3), Fla. Stat. The Court adopted the reasoning of the Massachusetts Supreme Court in Mass. Elec. Co. v. Mass. Comm’n Against Discrimination, which when considering a similar law held that because the ability to become pregnant is a primary characteristic of the female sex, and is unique to it, any discrimination on the basis of pregnancy is discrimination that uses sex as the basis of discrimination. 375 N.E.2d 1192, 1198 (Mass. 1978).

The Court asserted that discrimination based on pregnancy is in fact discrimination based on sex because it is discrimination as to a natural condition unique to only one sex and that arises “because of [an] individual’s . . . sex.”

The lone dissent by Chief Justice Polston posited that the term “pregnancy” should not be read into FCRA as it was not explicitly included in the statute.

Vicarious Liability and the Beneficial Ownership Exception to the Dangerous Instrumentality Doctrine

By Jacek Stramski

It’s 6:00PM. Do you know where the cars titled in your name are?

On April 10, the Florida Supreme Court issued an opinion addressing the beneficial ownership exception to the dangerous instrumentality doctrine, which provides that a vehicle owner who permits another to use the vehicle may be liable for any harm caused by the negligent use of the vehicle. The opinion, issued in Christensen v. Bowen (SC12-2078), is available here. A discussion about oral arguments held in the case is available here.

In the opinion, the Court unanimously held that Robert Christensen, who purchased a vehicle for his wife while the two were involved in divorce proceedings, and who was listed on the title as a co-owner of the vehicle, could be held vicariously liable in a wrongful death action stemming from a fatal accident in which his ex-wife negligently struck and killed another while driving the vehicle. The Court held that vicarious liability under the dangerous instrumentality doctrine could apply even though the car was intended by Christensen to be used by his ex-wife, and even though Christensen had neither keys to the car nor access to the garage where the car was kept.

The court began its analysis by noting that “[t]he underlying rationale of the [dangerous instrumentality] doctrine is that if a vehicle owner, who has control over the use of the vehicle, exercises his or her control by granting custody of the vehicle to another, the owner commits himself or herself to the judgment of that driver and accepts the potential liability for his or her torts.” (Op. at 5).

The Court recognized that there is a beneficial ownership exception to the dangerous instrumentality doctrine. The exception precludes vicarious liability when the titleholder lacks beneficial ownership of the vehicle. However, the Court held that the exception only applies in cases where equitable and legal rights of control have passed to another and the titleholder retains bare legal paper title. Such a situation might arise when a car is sold but title retained as security for the full payment of the purchase price, or where a common law purchase of a vehicle is effected but the title has not been updated to reflect the transfer.

In other words, “beneficial ownership is unrelated to physical access to a vehicle, past use of a vehicle, or intent to use or not use a vehicle. Rather, beneficial ownership arises from legal rights that allow an individual to exert some dominion and control over the use of the vehicle.” (Op. at 12). The Court added that for purposes of motor vehicle litigation, title determines ownership, and ownership reflected in a title can only be disproven by objective evidence of a “conditional sale or incomplete faulty transfer.” (Op. at 14).

Because Christensen did not present any evidence that he transferred his co-ownership interest in the vehicle, he retained the legal right (if not practical ability) to exert control over the vehicle. He therefore could not avail himself of the beneficial ownership exception to the dangerous instrumentality doctrine.

Florida Supreme Court Considers Procedural Due Process of State’s Involuntary Commitment System

By Jacek Stramski

National attention is focusing on the lack of adequate public mental health services, which has turned the criminal justice system into the repository for individuals with mental health problems. The New York Times covered the issue recently, following a study released by the non-profit Treatment Advocacy Center. At the same time, Florida’s system of involuntary civil commitment is being scrutinized for a lack of procedural safeguards that would ensure the release of a person involuntarily committed who no longer meets the criteria for such commitment. And this when, according to the state of Florida, 20,000 people are apparently on the wait list for Home and Community Based Medicaid Services, including mental health residential services. (Ans. Br. at 18 and 23).

The workings of Florida’s involuntary commitment statutes were discussed in oral arguments held today before the Florida Supreme Court in J.R. v. Palmer (SC13-1549). Briefs in the case are available here.

The appellant in the case, J.R., was charged with a felony in 2000 and was found incompetent to stand trial in 2001. In 2004, after no evidence was presented that J.R. would ever be competent to stand trial, criminal charges against J.R. were dismissed and he was involuntarily committed to a residential facility under the care and custody of the state’s Agency for Persons with Disabilities (APD). J.R. eventually challenged the statutes governing his involuntary commitment in federal district court, where he lost. On appeal, the 11th Circuit Court of Appeals certified questions of statutory interpretation to the Florida Supreme Court to determine whether Florida’s involuntary commitment statutes provide the required procedural due process protections.

As background, a person may be involuntarily committed if the person has an intellectual disability and (1) the person lacks ability to consent and lacks basic self-care abilities such that no close supervision would result in a real and present threat to the person’s well-being; or (2) the person is likely to injure others if allowed to remain at liberty. Section 393.11, Fla. Stat. A person who has been involuntarily committed may only be released upon order of the committing court. Because involuntary commitment restricts an individual’s liberty, involuntary commitment requires rigorous due process protections, which the 11th Circuit in this case held to include a periodic review requirement to determine if a person continues to meet the criteria required for involuntary commitment. See Parham v. J.R., 442 U.S. 584 (1979) and Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984). The 11th Circuit’s opinion is available here.

J.R. argues that chapter 393, Fla. Stat., creates a facially unconstitutional scheme of involuntary commitment because it does not require APD to engage in a periodic review to determine if the individual remains a threat to himself or others after being committed, and because the statutes do not require APD to petition a court to order release of an involuntarily committed individual if the individual no longer meets involuntary commitment criteria. Therefore, J.R. contends, the statutes violate procedural due process requirements on their face because they do not explicitly require APD to take any action to secure a person’s release after that person would no longer be subject to involuntary commitment in the first instance.

The state counters that section 393.0651, Fla.Stat., which directs APD to conduct support plan reviews to determine whether a client is placed in the least restrictive facility, and chapter 393, Fla. Stat. generally, can be interpreted to imply a requirement that APD evaluate whether an involuntarily committed person meets the is eligible for such commitment, and, if such eligibility cannot be established, to petition the trial court for an order directing the person’s release.

If the Court refuses to read the periodic review and petition requirements into the statutes, the federal 11th Circuit Court of Appeals may find Florida’s involuntary commitment scheme to be unconstitutional.

Retroactive Application of the Miller Rule to Juvenile Life Without Parole Sentences

By Herron Bond

In Falcon v. State (SC13-865), argued on March 6, 2014 (oral arguments available here), the Supreme Court of Florida considered a motion for post-conviction relief about whether to allow individualized sentencing for a 15 year old who in 1999 was given a mandatory sentence of life without the possibility of parole for the murder of a cab driver in 1997.

In her initial brief, Falcon argued that her sentence is unconstitutional following the decision of the U.S. Supreme Court in Miller v. Alabama, 567 U.S. ___ (2012). In Miller, the U.S. Supreme Court ruled that mandatory sentences of life without parole for juvenile offenders violate the 8th Amendment’s prohibition on cruel and unusual punishment. The Court found that a sentence given to a juvenile under mandatory sentencing schemes which treat juvenile offenders the same as adult offenders is not proportional to the offense because children possess certain transient traits, such as “immaturity, irresponsibility…and recklessness,” that make them less culpable for their actions and more likely to reform than adults. According to Falcon, the Court’s reasoning in Miller is particularly applicable in her case because her upbringing was marked by mental and sexual abuse by her step-father and a feeling of abandonment after her parents’ divorce.

Falcon argued that the Miller rule should apply retroactively in state collateral review proceedings. She claimed that the U.S. Supreme Court intended its decision to apply in the collateral review phase, pointing to the fact that a consolidated plaintiff in Miller was also seeking post-conviction relief. Falcon also argued that the rule from Teague v. Lane, 489 U.S. 288, compels the State to apply the Miller rule in her case because “evenhanded justice requires that [a new rule] be applied retroactively to all who are similarly situated.” Finally, Falcon argued that retroactive application would be consistent with the standard articulated by the Florida Supreme Court in Witt v. State, which weighs fairness against the need for finality in determining whether to apply a rule retroactively. 387 So.2d 922 (Fla. 1980). Under Witt, a ruling from the U.S. Supreme Court that is constitutional in nature must be “of fundamental significance” in order to satisfy the balancing test. According to Falcon, the Miller rule is of fundamental significance because it limits the sentencing power of the state, significantly affects fairness, impugns to the accuracy of the prior sentence, and will affect a relatively small number of convictions because the mandatory sentencing statute has only been in place for 20 years.

In its answer brief, the State argued that Federal law does not mandate Florida’s retroactive application of the Miller rule. According to the State, the Court in Miller never addressed retroactivity when granting relief to the consolidated post-conviction plaintiff. Additionally, the State claimed that states are not required to rely on the test from Teague.

The State’s answer brief focused primarily on whether retroactive application of the Miller rule would comply with Florida’s Witt standards. The State claims that Miller does not comply because the rule is not “of fundamental significance.” First, the State pointed to the fact that Miller did not preclude the State’s ability to issue a life sentence, it merely added additional procedures before doing so. Next, the State argued that the rule is not of sufficient magnitude to warrant retroactivity because it has no bearing on the determination of guilt or innocence. Finally, the State pointed to the fact that the rule will affect a large number of previously-convicted defendants and place a substantial burden on the administration of justice by requiring large amount of new evidence in the individualized sentencing hearings.

The Legislature may resolve some of these issues going forward; the House recently passed CS/HB 7035, which addresses juvenile sentencing for a range of crimes. It remains to be seen how the Florida Supreme Court will address sentences already issued.

E-Zer Said than Done: Court Considers Will Prepared With Commercially Available Form

By Jacek Stramski

The Supreme Court’s decision in Aldrich v. Basile (SC11-2147), issued last week, provides the latest example of how using a commercial form to prepare a will can turn out to be much more expensive in the long run than enlisting some professional help to do so.

The decedent, Ms. Aldrich, in 2004 executed a will on an “E-Z Legal Form” (you can’t make this up, folks). In the will, Ms. Aldrich stated that specific property of hers, including her house, car, bank accounts and life insurance, be distributed to her sister, Ms. Eaton. Ms. Aldrich provided in the will that if her sister should predecease her, then all of her listed property should be left to her brother, Mr. Aldrich. The will did not have a residuary clause that would apply to any property not listed in the will.

Inevitably, the sister predeceased Ms. Aldrich and left her property to Ms. Aldrich. Ms. Aldrich placed the property in a new account that she opened up for the purpose of keeping the newly inherited money. When Ms. Aldrich passed in turn, Mr. Aldrich was appointed personal representative of her estate. Two of Ms. Aldrich’s nieces asserted an interest in the probate action, stating that part of the estate was subject to intestate succession (a set of default rules of inheritance that apply to a deceased person’s property not subject to a will).

Mr. Aldrich initiated an adversary proceeding, arguing that Ms. Aldrich intended her entire estate to pass to him. In support, he pointed out that only he and the sister were listed in the will, that section 732.6005(2), Fla. Stat., provides that a will shall be construed to pass all property owned by the testator at death, and that Florida applies legal presumptions against interpreting wills to result in partial intestacy. The trial court held in favor of the nieces, finding that the lack of general devises and a lack of a residuary clause in the will meant that the property acquired by Ms. Aldrich after the execution of her will was not disposed of by the will, and would pass through intestacy. The First District Court of Appeal reversed the trial court, finding that the intent of the deceased expressed in the will indicated that her property should pass to her brother.

On appeal, the Supreme Court unanimously held that the property acquired by Ms. Aldrich after her will was executed was not subject to the will. The Court noted that the intention of a testator as expressed in the will does control the disposition of the testator’s property, but only to the extent specified in the will. The Court pointed out that section 732.101, Fla. Stat., which provides that any part of an estate that is not disposed of by will is subject to intestacy, was not limited for estates containing after-acquired property. The fact that Ms. Aldrich kept a hand-written note with her will, drafted after the death of Ms. Aldrich’s sister, which would grant all her property to her brother, was not relevant as that note was not executed in accordance with the requirements of the Florida Probate Code.

Justice Pariente filed a concurring opinion, in which she stated that this case reminded her of the phrase “penny-wise and pound-follish,” and lamented the lack of foresight of Ms. Aldrich in “using a commercially available form, an “E-Z Legal Form,” which did not adequately address her specific needs—apparently without obtaining any legal assistance.” A worthwhile lesson for all.

Are Administrative Negligence Claims Against Hospitals Subject to Medical Malpractice Act Requirements?

By Herron Bond

Earlier this month the Supreme Court of Florida heard arguments in Burns v. Palms West Hospital (SC12-1387), a dispute revolving around claims for administrative negligence brought against a hospital for continuing to retain physicians who had previously refused to treat patients with certain emergency medical conditions.

In 2006, a patient with a severe gastrointestinal condition was admitted to Palms West Hospital. The Hospital, party to a contract with the State of Florida to provide 24 hour emergency medical care in the field of gastroenterology, contacted six physicians under its employ to provide care. All six refused to respond to the call and the patient subsequently died while being transported to another hospital.

One month later, Enrique Casasnovas was admitted to the Hospital with a similar condition. Again, the Hospital’s six gastroenterologists refused to provide care and Casasnovas was transferred to another hospital after a four hour delay. A short time after being transferred, he suffered a cardiac arrest, which led to his death several weeks later.

The Personal Representative for Casasnovas’ estate filed suit against the Hospital under section 766.110 of the Medical Malpractice act and under a theory of administrative negligence for failing to terminate the six gastroenterologists despite the 24 hour care agreement with the State and knowledge of the physicians’ previous failure to provide services to patients with emergency conditions. The Hospital argued that the claims should be dismissed because the Estate failed to comply with the pre-suit requirements of the MMA. To this point, the Estate responded that it was under no obligation to comply with the Act because its claims were founded in administrative negligence, not medical malpractice. The Fourth DCA ruled in favor of the Hospital, finding that “the medical negligence umbrella is wide and often encompasses business decisions which result in injury to the patient.” The Estate sought discretionary review by the Supreme Court of Florida.

In its initial brief to the Court, the Estate first urged that the pre-suit provision of the MMA should be narrowly construed because it restricts access to the courts. Pointing to two Florida appellate decisions, the Estate claimed that this provision (in its narrowly construed form) requires a defendant to prove that the use of a medical negligence standard of care is necessary for the plaintiff’s claim. Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995); Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491, 493 (Fla. 5th DCA 2013). According to the Estate, the Fourth DCA based its ruling on two findings, neither of which considered the necessity of a medical negligence standard of care: First, the court considered causation, ruling that the claims “[are] medical negligence claim[s] when [the Estate] is claiming that [the decedent’s] death resulted from the lack of treatment.” Second, the court found that the claims are for medical negligence because they “would likely be proved using the prevailing standard of care for hospitals.”

The Estate argued that the Hospital would not have been able to satisfy its burden of proving that a medical standard of care was necessary for the claims at issue had the Hospital properly construed the pre-suit requirements. According to the Estate, the claims could have been brought under an administrative negligence standard because the claims were based on the Hospital’s administrative decision-making and the physicians’ non-medical decision to refuse care. The Estate claimed that the physicians’ refusal was “part of an ongoing business-decision dispute between the physician groups” and that their absence had nothing to do with their medical assessments of the patient. Further, the Estate cited similar cases in which courts allowed administrative negligence claims in a health care setting. Joseph v. University Behavioral LLC, 71 So.3d 913 (Fla. 5th DCA 2011)(Psychiatric facility failed to separate patients despite a request, resulting in a physical altercation); Acosta v. HealthSpring of Fla., Inc., 2013 WL 3723310 (Fla. 3d DCA July 17, 2013)(Hospital delayed the patient’s transfer to another hospital to secure a “preferred provider” rate at a specific facility); Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002 (Fla. 3d DCA 1997)(Hospital mislabeled a urine sample); Burke v. Snyder, 899 So.2d 336 (Fla. 4th DCA 2005)(Hospital negligently hired a physician who sexually assaulted a patient during a medical examination).

Next in its initial brief, the Estate argued that the Fourth DCA failed to address its statutory claim under §766.110 of the MMA. This provision requires the Hospital to “adopt procedures for selection and review of the medical care and treatment that its medical staff was rendering to patients” and “supervise that medical staff to ensure that its risk management processes were being diligently carried out.” According to the Estate, the Hospital violated this statute by retaining these gastroenterologists, thereby jeopardizing future patients’ access to medical care.

Finally, the Estate claimed that Fourth DCA’s grant of certiorari relief was improper because the lower court did not depart from the essential requirements of the law. According to the Estate, the lower court’s ruling that the claims fell outside of medical negligence would constitute a legal error (assuming arguendo that the ruling was erroneous), falling short of a “departure from the essential requirements of law.”

In its reply brief, the Hospital argued that the claims are “for medical negligence” because the underlying conduct of the physicians is medical in nature. To this point, the Hospital cited § 766.106(1)(a), Fla. Stat. (2008), which defines a “claim for medical negligence” as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” The Hospital urges that this definition clearly includes the claims at issue in this case because without the physicians’ “failure to render” medical care, no administrative action by the Hospital would have been necessary. The Hospital drew a comparison to Tunner v. Foss, 655 So. 2d 1151 (Fla. 5th DCA 1995), in which the Fifth DCA ruled that a plaintiff’s claims were “for medical negligence” where a doctor refused to “obtain reasonable and necessary consultations from specialists/and or hospitalize” the decedent, even though the physician’s actions were motivated by a desire to avoid economic loss that would result from obtaining the consultations. According to case law cited by the Hospital, claims derived from the wrongdoing of a physician must rely upon the medical negligence standard of care. Burke v. Snyder, 899 So. 2d 336 (Fla. 4th DCA 2005). Thus, the MMA would apply to common law and statutory claims in this case.

Next, the Hospital argued that the pre-suit requirements of the MMA should apply even if the claims were not found to rely on medical negligence by the physicians. The Hospital provided two justifications for the argument. First, the pre-suit requirements are not limited to negligence claims, pointing to several situations in which courts and the legislature have recognized that the provision applies even when the claim does not rely on a medical standard of care (intentional torts, contract claims, claims derived from actions by nonprofessionals, and claims based on a business decisions made by a hospital). Second, the Hospital argued that its administrative actions ,would be subject to a medical standard of care, regardless of the underlying conduct of the physician, because those actions are “professional services involving medical judgment and skill.” The Hospital pointed to Florida courts’ recognition that “the ongoing duty to review and evaluate medical staff at issue in this case is part of the delivery of medical services to the public” O’Shea v. Phillips, 746 So. 2d 1105, 1109 (Fla. 4th DCA 1999) and 2003 amendments to the MMA, which substituted the term “medical malpractice” for the broader term “medical negligence.” §766.106(1)(a), Fla. Stat.

Regarding the claim that the pre-suit requirements restrict the Estate’s access to courts, the Hospital responded by arguing that the provision applies uniformly to all plaintiffs asserting medical malpractice claims and, in order to uphold the intent of the legislature, mere procedural difficulty should not be sufficient to circumvent the Act.

Finally, the Hospital argued that the lower court’s ruling that the claims fell outside of medical negligence constituted a departure from the essential requirements of law because, after heavy litigation, courts have determined that claims such as the plaintiff’s fall within the MMA.

Florida’s Relation Back Doctrine and Third-Party Defendants

By Jacek Stramski

In Caduceus Properties, LLC v. Graney (SC12-1474), decided in late February, the Supreme Court clarified that “an amended complaint, naming a third-party defendant as a party defendant, relates back to the filing of the third-party complaint” for statutes of limitations purposes.

Caduceus, the plaintiff at trial, leases a portion of a building to Tallahassee Neurological Clinic (TNC). The building architect, Michael Gordon, subcontracted with KTD Consulting Engineers (KTD) and its principal, William Graney, to design an HVAC system for the building. In 2005, the HVAC system began to fail, and continued to have problems. Caduceus filed suit against Gordon in July 2006, with whom it was in privity of contract. In 2007, Gordon filed a third-party action against KTD and Graney, alleging that they were liable for all or part of Caduceus’ claim against Gordon. Gordon’s third-party complaint was subsequently dismissed for failure to comply with a court order, and he declared bankruptcy, which automatically stayed the litigation against him. In 2010, after the statute of limitations relating to the original claim had run, Caduceus sought to amend its complaint to add TNC as a party plaintiff and KTD and Graney as party defendants. The motion to amend was granted, and KTD and Graney moved for involuntary dismissal. The motion to dismiss was denied by the trial court, and judgment was entered against the defendants following trial.

On appeal, the First District Court of Appeal (DCA) held that the amended complaint could not relate back to the filing of the original complaint. The DCA certified conflict with the Fifth DCA decision in Gatins v. Sebastian Inlet Tax District, 453 So.2d 871 (Fla. 5th DCA 1984) that an amended complaint related back to the filing of third-party complaint for statute of limitations purposes, and First DCA’s decision was appealed to the Supreme Court. The Court started out by noting that the First DCA had improperly framed the issue as whether the relation back of the amended complaint reached to the original complaint; rather, the Court pointed out, the issue considered should have been whether or not the amended complaint related back to the third-party complaint.

The Court then noted that Florida Rule of Civil Procedure 1.190(c) provides that an amended complaint relates back to the original pleading “[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” The Court pointed out that when the claims set forth in an amended complaint arise out of the same “conduct, transaction, or occurrence” set out in the third-party complaint, Florida’s judicial policy of freely permitting amendments to pleadings so that cases may be resolved on the merits would be served by allowing such amendment in this case. The Court also noted that the purpose of statutes of limitations is to prevent long delays in the filings of lawsuits and the prejudice to defendants from the unexpected enforcement of old claims. That purpose was not implicated in this matter, as the defendants were put on notice by the third-party complaint filed within the limitations period that the defendants might be held liable based on the occurrences alleged.

Therefore, the Court held that rule 1.190(c) provides that an “amended complaint filed after the statute of limitations period has expired, naming a party who had previously been made a third-party defendant as a party defendant, relates back […] to the filing of the third-party complaint….[T]he third-party complaint must have been filed prior to the
expiration of the statute of limitations and the plaintiff’s claims in the amended
complaint must arise from the same “conduct, transaction, or occurrence” set forth
in the third-party complaint.” (Op. at 14-15)

Court Rules that Undocumented Immigrants are Not Eligible for Admission to the Florida Bar

In Florida Board of Bar Examiners Re Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar (SC11-2568), the Florida Supreme Court decided in a unanimous per curiam decision that undocumented immigrants are not eligible for admission to the Florida Bar. Prior discussions of the case and arguments are available here and here.

The Florida Supreme Court based its decision on federal law, which provides that an alien is not eligible for any state public benefit, including professional licensure, unless the alien has a legal immigration status. 8 U.S.C. s. 1621. The Court noted that this law, passed under the federal government’s plenary power to regulate immigration, prohibits Florida from granting undocumented immigrants a license to practice law. While states may take specific action to override this requirement by enacting a state law, the Court noted that the Florida Legislature has not passed any law to avoid application of the federal law (in contrast to California, which did). The Court concluded that the deferred action status granted by the Department of Homeland Security to certain undocumented aliens who meet specific criteria for provisional work permits does not provide the Court grounds to ignore the federal statutory prohibition on granting state licenses to such individuals.

This Week’s Oral Arguments: Hearsay, Audio Recordings, and Medical Malpractice Issues

By Scott Kalish

On Thursday the Court will hear oral argument in McDade vs. State, SC13-1248 on evidentiary issues that arose from Mr. McDade’s trial and subsequent conviction for sexual battery of his step-daughter. Mr. McDade appealed, arguing that the trial court made two evidentiary errors. First, he argues that the improperly allowed the jury to hear an audio recording that was taken without his knowledge. The trial court also allowed the testimony of the victim’s boyfriend, which consisted of alleged hearsay statements not subject to any applicable exception to the hearsay rule. The District court affirmed the defendant’s conviction. However they did certify the question as to the admissibility of the recording to as a question of great public importance.

On Thursday the court will also hear McCulla et al. vs. Rell, et al., SC12-2598, a dispute concerning a medical malpractice suit. In 2011 Mr. McCulla filed a medical malpractice suit against his podiatrist for two injuries to his foot that were allegedly caused by operations performed by Dr. Rell. Dr. Rell filed a motion to dismiss alleging that he had not received proper notice of the malpractice suit pursuant to section 766.203, Fla. Stat.(2). The statute provides that before filing suit the plaintiff must obtain a corroborating opinion from a medical expert that the injuries in question were caused by medical negligence. The letter in question however does not explicitly state that in the expert’s opinion Dr. Rell’s care fell below the acceptable standard of care and was cause of Mr. McCulla’s injuries. The trial court ruled that the letter obtained by their expert was sufficient to satisfy the notice requirement. However, the Second District disagreed and held that the expert opinion did not satisfy the notice requirement. The Supreme Court may ultimately decide how specific and explicit a corroborating letter must be before a medical malpractice suit may be brought.

Constitutional Challenge to Workers’ Compensation Statute Pending Before the Court

By Herron Bond

The Supreme Court of Florida has accepted discretionary jurisdiction to resolve constitutional challenges to the First District Court of Appeal’s en banc ruling in Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013) and section 440.15 of Florida’s Workers’ Compensation statute (Ch. 440, Fla. Stat.). Both parties in the dispute contend that the First DCA’s en banc opinion violates the due process clause (Amend. XIV, U.S. Const.) and the doctrine of separation of powers (Art. II, § 3, Fla. Const.) by impermissibly modifying Florida’s Worker’s Compensation statute to include a new category of disability known as temporary permanent total disability. The Petitioner also argues that the 104 week limitation on temporary total disability benefits found in s. 440.15, F.S. violates the due process clause and the access to courts provision in Art. I, § 21, Fla. Const. by creating an inadequate and fundamentally unfair remedy for injured workers.

This dispute arose when Bradley Westphal, a firefighter for the City of St. Petersburg, was injured while stepping off of a firetruck in 2009. The City paid temporary total disability benefits to Westphal for the statutory maximum of 104 weeks and promptly ceased payment because Westphal had not reached maximum medical improvement (MMI) and, thus, could not show that he was entitled permanent total disability benefits. Nine months later, when Westphal reached MMI and was able to show that he was permanently totally disabled, the City resumed payment of benefits to Westphal, this time in the form of permanent total benefits.

Westphal filed suit seeking compensation for the 9 month gap in benefits that began after the expiration of the 104 week period and lasted until the day he was able to establish factual MMI. The Judge of Compensation Claims found that Westphal was not entitled to benefits during the 9 month gap because he had not reached MMI at that time. On appeal, the First DCA issued a panel decision reversing the lower court after finding that the 104 week limit on temporary benefits violates the access to courts provision of the Florida Constitution. The City sought rehearing and, in an en banc opinion, the First DCA departed from the panel’s ruling on the constitutionality of the statute. Instead, the Majority found that Westphal was entitled “temporary permanent total disability” benefits, a new category of benefits created by the court, because the statute permits an injured worker to claim MMI as a matter of law when the employee has reached the 104 week limit on temporary benefits.

In his Initial Brief to the Supreme Court of Florida, Westphal first argues that the creation of “temporary permanent total disability” by the First DCA is unconstitutional. Westphal claims that the adoption of a category of benefits that was not included in the statute is an example of “judicial legislation contrary to separation of powers” because it encroaches on the power of the legislature. Furthermore, Westphal claims that the new category is a deprivation of due process because 1) it is based on the invalid presumption that one reaches MMI at the end of the 104 week period, regardless of whether the employee has actually recovered; 2) it is “based on a physician rating permanent impairment 6 weeks before the 104 weeks anniversary of the accident, even though the employee has not reached MMI;” and 3) it omits the vocational test, which would require an employee to show “that the employee is not able to engage in at least sedentary employment within a 50-mile radius of the employee’s residence.”

The City agrees with Westphal’s argument that the creation of “temporary permanent total disability” violates the doctrine of separation of powers and due process of law. The City also argues that the First DCA’s decision violates the judicial policy of stare decisis, pointing to Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011), which held that a claimant is not entitled to permanent benefits if he has not reached MMI, and City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998), which held that a claimant who has not reached MMI can obtain permanent benefits if he can show that he will be permanently disabled upon reaching MMI. In this case, Westphal had not reached MMI at the end of the 104 week period and the lower court had already ruled that Westphal did not show that he would be disabled upon reaching MMI. Thus, the City argues that First DCA’s ruling directly conflicted with Hadley and Oswald.

Next in his Initial Brief, Westphal claims that the statutory 104 week limit for temporary total benefits violates several constitutional provisions because it is an inadequate remedy for employees. Westphal points to several factors to show that the provision is inadequate and unfair: 1) Florida’s original Worker’s Compensation Law included a 350 week limit for temporary disability; 2) Florida’s 104 week limit is tied for least employee-friendly in the United States; 3) Florida no longer mandates full medical benefits, which could offset the harsh limit on temporary benefits; and 4) Florida has repealed the Florida Occupational Safety & Health Act, so there are fewer accident prevention measures to mitigate the limitation.

Pointing to Kluger v. White, 281 So. 2d 1 (Fla. 1973), Westphal claims that the disparity between the current 104 week limit and the original 360 week limit from the 1967 Workers’ Compensation Law violates Florida’s access to courts provision. In Kruger, the Court held that “the test of constitutional validity in terms of access to courts is a comparison of a current statutory remedy to the common law and statutory remedies that existed in 1968 when the people voted for access to courts.” The City responds that the provision does not violate the access to courts provision because it does not abolish, but merely alters a preexisting right, satisfying Kruger.

Westphal also claims that the provision should be struck down on the grounds of fundamental fairness pursuant to the due process clause. In response, the City cites Ferguson v. Skrupa, 372 U.S. 726, 730 (1963), in which the Supreme Court of the United States ruled: “The doctrine that prevailed in Lochner… and like cases–that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely–has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Thus, the City claims that the statute cannot be struck down under the 14th Amendment unless “it is clear that the law is not in any way designed to promote the people’s health, safety or welfare” or “the statute has no reasonable relationship to the statute’s avowed purpose.”

Finally, the City argues that the en banc panel correctly avoided reaching the constitutionality of the statute. The City claims that addressing constitutionality would have been premature because the court only needed to determine whether Westphal satisfied the Hadley/Oswald framework. Further, the City claims that the legislature should be given deference because the provisionpasses rational basis review, a low level of scrutiny under which only the most egregious government actions are found unconstitutional.