Jeff’s December 2023 Legal Roundup
Jeffrey Molinaro
Board Certified Specialist in Appellate Practice | Partner and Chair of the Appellate Practice Group at Fuerst Ittleman David & Joseph, PL
Jeff’s December 2023 Legal Roundup[i]
Happy Holidays! Just a couple cases and rule amendments that have caught my eye this month that I wanted to share. This month’s edition includes whether a categorical work product privilege exists over an insurer’s claims files, whether the pre-suit notice provision of section 627.70152 applies to policies issued prior to its enactment, whether a criminal defendant is entitled to bring a motion to withdraw plea upon court-ordered resentencing, and amendments to Federal Rule of Evidence 702, Florida Rule of Civil Procedure 1.041 and Form 1.933, and Florida Rules of Appellate Procedure 9.020 and 9.400.
1. Homeowners Choice Prop. & Cas. Ins. Co., Inc. v. Thompson, No. 1D2023-0970 (Fla. 1st DCA Nov. 22, 2023).
The First District holds that the lower court did not depart from the essential requirements of the law by compelling the insurer to produce documents from its claims and underwriting files because there is no categorical work-product based privilege over such files.
The case below concerned an insured suing an insurer for breach of contract. The insured sought discovery of the insurer’s field adjuster’s notes, evaluations, inspections, reports, and photos kept in the ordinary course of business; and any documents or evidence supporting the insurer’s denial of the claim or its defenses or affirmative defenses. The insurer objected asserting a categorical work-product privilege in its claim and underwriting files. Upon in camera inspection, the lower court required production of some documents, including the field adjuster’s logs and photos of the initial home inspection and those relating to the insurer’s early basic evaluation of the claim, while upholding the work-product objections as to other documents, particularly those generated later in the process. The insurer sought review via petition for writ of certiorari.
In denying the insurer’s petition for writ of certiorari, the First District held that documents in claims and underwriting files are not automatically work product. Thus, where the insurer did not prove that the requested documents were prepared in anticipation of litigation—and in fact were produced before any coverage determination had occurred—the lower court’s order overruling the insurer’s work product objections did not depart from the essential requirements of law. Put simply, a categorical-based work-product objection will not automatic prohibit disclosure of all contents of an insurer’s claims and underwriting file.?
We have conflict over whether statutory pre-suit notice under section 627.70152, Florida Statutes applies to insurance policies issued prior to the statute’s enactment. The Sixth District holds that it is bound by prior Supreme Court precedent to find that the statute’s pre-suit notice requirement does not retroactively apply to policies issued prior to its enactment. In so holding, the Court certified conflict with the Fourth District’s decision in Cole v. Universal Property & Casualty Insurance Co., 363 So.3d 1089 (Fla. 4th DCA 2023).
Section 627.70152 requires an insured who desires to sue his or her property insurance carrier to file a pre-suit notice of intent to litigate with the Department of Financial Services before suing. If the insured fails to do so, section 627.70152 mandates that a court dismiss without prejudice any suit brought by the insured for which pre-suit notice was required.
Below, shortly after the statute’s effective date, the insured sued the insurance company for breach of her property insurance policy without first filing a pre-suit notice under section 627.70152. The insurance company moved to dismiss based on the insured’s failure to file the pre-suit notice, which the trial court granted.
On appeal, the insured argued that, based on Menendez v. Progressive Express Ins. Co., 35 So.3d 873 (Fla. 2010), section 627.70152 is a substantive statute that cannot apply to a claim brought under an insurance policy purchased before the statute’s enactment. In agreeing with the insured, the Sixth District found that the statute significantly altered the insurer’s obligation to pay and the insured’s right to sue under a property insurance policy. The Sixth District further found that there was no clear evidence of legislative intent for retroactive application; thus, due to this absence of clear evidence, the lower court erred in its retroactive application.
As explained above, the Court certified conflict with the Fourth District’s decision in Cole. It remains to be seen whether the Florida Supreme Court will address the conflict now or allow the issue to percolate in the other Florida Districts.
The Fourth District holds that a criminal defendant is not entitled to bring a motion to withdraw plea pursuant to Fla. R. Crim. P. 3.170(f) upon court-ordered resentencing. In so holding, the Fourth District certified conflict with the Second District’s decision in Scott v. State, 331 So.3d 297, 301 (Fla. 2d DCA 2021).
Rule 3.170(f) provides “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn[.]” Fla. R. Crim. P. 3.170(f).
In Saffold, Defendant pled guilty but appealed the sentences after his motion for downward departure was denied. On appeal, the Fourth District ordered resentencing as to counts IV and V. Upon return to the trial court for resentencing, Defendant moved to withdraw his guilty plea via Rule 3.170(f). This motion was denied. Defendant subsequently appealed this ruling.
On appeal concerning the denial of defendant’s motion to withdraw guilt plea, Defendant argued that pursuant to Scott, his motion was proper and timely because his motion to withdraw his plea was made “before a sentence,” and Scott held that rule 3.170(f) would apply to resentencing, which is a de novo proceeding.
In Scott, the Second District held that Rule 3.170(f) applies to resentencing hearings because “the use of the nonexclusive ‘a’ suggests that it applies to any sentencing proceeding, whether that be the initial sentencing or a subsequent resentencing.” Scott, 331 So. 3d at 302. ?The Second District held that because resentencing is a de novo proceeding, the rule entitled the defendant to seek withdrawal of his plea, as the motion was made before a sentence, namely the sentence imposed on resentencing. Id. at 301.
In rejecting this argument, the Fourth District explained that it disagreed with the Scott Court’s logic. The Fourth District explained that if “a” was to mean “any,” then the article “any” should have been used. Thus, in the context of withdrawing after a resentencing, the language is ambiguous.
The Fourth District reasoned that after a sentence is imposed, a defendant must demonstrate manifest injustice to withdraw a plea. See generally, Fla. R. Crim. P. 3.170(l). This is significantly more restrictive than the good cause requirement under 3.170(f). “When a defendant is being resentenced, the defendant already knows the sentence he/she has received. Thus, the defendant is in the same position as the defendant who seeks to withdraw the plea pursuant to rule 3.170(l) after sentencing, not the position of the defendant who seeks to withdraw the plea before sentencing.”
Additionally, although procedurally, resentencing is a new sentencing proceeding, this does not negate that the defendant has already had “a” sentence imposed.
The Fourth District further held that interpreting rule 3.170(f) as permitting a motion to withdraw a plea upon resentencing also conflicts with the principle of finality.
Given these issues, the Fourth District concluded that “if a motion to withdraw under rule 3.170(f) must be made before a sentence, then the only time that can occur is before the original sentence.”
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Amended Federal Rule of Evidence 702 went into effect on December 1, 2023.
Amended FRE 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The amendment clarifies that expert testimony may not be admitted unless the proponent establishes that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule. The committee explained that many courts have held that the critical questions of the sufficiency of an expert's basis, and the application of the expert's methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a). The committee concluded that emphasizing the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to apply correctly the reliability requirements of that rule.
The committee further explained that Rule 702(d) has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert's basis and methodology may reliably support. The committee explained that this amendment is particularly pertinent to testimony of forensic experts.
As the committee explained, “forensic experts should avoid assertions of absolute or one hundred percent certainty--or to a reasonable degree of scientific certainty--if the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, the judge should (where possible) receive an estimate of the known or potential rate of error of the methodology employed, based (where appropriate) on studies that reflect how often the method produces accurate results. Expert opinion testimony regarding the weight of feature comparison evidence (i.e., evidence that a set of features corresponds between two examined items) must be limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods.” The amendment, however, does not bar testimony that comports with substantive law requiring opinions to a particular degree of certainty.
5. In re: Amendments to Florida Rule of Civil Procedure 1.041 and Form 1.933, No. SC2023-0361 (Fla. Dec. 7, 2023).
The Florida Supreme Court announced two changes to the Florida Rules of Civil Procedure.
First, the Court adopted new Rule 1.041 establishing the procedure for an attorney to enter a limited appearance in civil proceedings. The concept of a limited appearance is not new to the Court as it previously adopted a similar procedure for appellate court appearances. See Fla. R. App. P. 9.440.
The new rule authorizes an attorney to file a notice limiting the attorney’s appearance to particular proceedings or specified matters prior to any appearance before the court. It also explains that during the attorney’s limited appearance, all pleadings must be served on all parties, including the limited appearance attorney. The rule provides that a limited appearance attorney who receives notice of a hearing that is outside the scope of representation must file a notice stating the matter is outside the scope of representation and that the attorney will not attend the court proceeding or hearing. Finally, the rule provides that termination of a limited appearance must be in accordance with Florida Rule of General Practice and Judicial Administration 2.505.
Second, the Court amended form 1.933 concerning account stated to ensure the form is consistent with the standard jury instructions in contract and business cases. The form requires the plaintiff to indicate whether the plaintiff and the defendant agreed to the balance on a specific date, or whether the plaintiff sent a statement to the defendant on a specific date and the defendant failed to object within a reasonable time after receiving the statement. Further, the plaintiff must indicate whether the defendant expressly promised to pay the plaintiff the balance due, or the defendant implicitly promised to pay the amount set forth in the statement. The Court also amended the note to form 1.933 to provide a general instruction that the plaintiff attach supporting documents as required by Fla. R. Civ. P. 1.130.
6. In re: Amendments to Florida Rules of Appellate Procedure 9.020 and 9.400, No. SC2023-0836 (Fla. Dec. 21, 2023).
The Florida Supreme Court announced two amendments to the Florida Rules of Appellate Procedure.
First, the Court amended Rule 9.020(h)(1) concerning motions tolling rendition to add motions to vacate orders issued by general magistrates under Florida Family Law Rule of Procedure 12.490 to the list of motions tolling rendition of a final order. The Court explained that this amendment was in response to the Court’s recent amendment of rule 12.490(e)(3), which now provides for the ratification of a general magistrate’s recommended order, unless the court finds it deficient, and allows the challenge of such an order through a motion to vacate.
Second, Rule 9.400 was amended to create new subdivision (b)(4) that provides a uniform practice and procedure before the appellate courts in cases where the court issues an order of dismissal under rule 9.350. New subdivision (b)(4) establishes a 7-day period after an order of dismissal is rendered to serve a motion for appellate attorneys’ fees, if the otherwise applicable deadline for serving the motion has not yet expired.
[i] Jeffrey J. Molinaro, B.C.S., is board certified in appellate practice and chairs the appellate practice group at Fuerst Ittleman David & Joseph. Mr. Molinaro represents clients throughout Florida and the United States on various appellate matters. He can be reached at [email protected] or 305-350-5690.