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Litigation's Latest: April 2014

April 21, 2014

Below are the articles for the April issue. To view, click on the appropriate title and you will be brought to the full version of the article below.

Recent Changes Provide Guidance to Florida Jurors in Business and Contract Disputes and Limit their Case Related Communications

Broker May Have Affirmative Duty to Advise Client 


Litigation trends and technological advances incited changes to Florida’s Standard Jury Instructions. Florida trial courts utilize Standard Jury Instructions, which are approved by the Florida Supreme Court, to instruct juries in civil litigation matters. The Standard Jury Instructions were initially created for negligence-type matters in the late sixties, and include procedural, evidentiary, and substantive instructions. Directives relating to a juror’s use of electronic devices (e.g., cameras, cell phones, laptops) to discuss or research information about the trial are also included. Because requesting modified instructions or improperly instructing the jury with non-standard instructions can create appellate error issues, Florida judges and attorneys routinely use the standard jury instructions.

In 2006, over 30 years after the negligence-type Standard Jury Instructions were initially implemented, the Supreme Court of Florida established a committee to create proposed instructions for use in contract and business litigation matters. The committee’s proposed instructions were approved last summer. As such, jurors are now routinely instructed on uniform standards of law associated with contract and business disputes. Consequently, business litigants are benefitting from the application of these instructions from the onset of a dispute (when assessing the strengths and weaknesses of a claim in light of the anticipated application of the instructions) to its final resolution at trial (when the instructions are provided).

Amendments to the Standard Jury Instructions will also be forthcoming to address two recent changes to Florida’s procedural and judicial rules, both of which limit juror’s substantive communications outside of the jury panel.

A new Florida Rule of Judicial Administration, Rule 2.451, prohibits jurors from using electronic devices to photograph/record, or communicate about, court proceedings, transmit or access text/data during court proceedings, or transmit, research or access information about the trial. It also provides Judges with authority to remove electronic devices from jurors before jury deliberations begin, and possibly during entire periods of sequestration. Additionally, an amendment to Rule 1.431 of the Florida Rules of Civil Procedure requires all communication between the jury and the Court/courtroom personnel, but for innocuous communications relating to juror comfort and safety, to be part of the record. While similar directives were previously in place, these changes expand a Court’s authority to enforce the old directives and limits a juror’s access to, and use of, his or her personal electronic devices. They also aim to keep a juror’s individual assessment of a case within the jury box.

In sum, these recent amendments demonstrate Florida’s commitment to meeting the needs of litigation trends and evolving technology in the Courtroom. Such advancements provide our litigants with the security that our jurors will be well instructed on the standards of applicable business and contract law and individually apply those standards to the evidence presented at trial.

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The Hon. Judge Daniel T.K. Hurley (United States District Court for the Southern District of Florida) recently issued an opinion that may dramatically expand the duties of a Florida insurance broker in the case of Tiara Condominium Ass’n v. Marsh, USA, Inc. Prior to Judge Hurley’s decision, no Florida court ever imposed a specific duty to advise on a Florida broker. Under the logic of Tiara, if a fact-finder determines that a “special relationship” exists between the broker and client, the broker may have an affirmative duty to recommend the amounts and types of insurance reasonably necessary to protect the client’s interests. Prior Florida decisions suggested that a duty to advise could exist under certain circumstances, however, the unambiguous holding of Tiara may strengthen support for an expansion of this duty.

Marsh, the insurance broker, procured a windstorm policy for the Tiara Condominium Association with limits of nearly $50 million in 2004. During the 2004 hurricane season, several storms caused over $100 million in damage to the condos. The association sued Marsh asserting claims for breach of fiduciary duty and negligence. Judge Hurley’s opinion was issued in response to Marsh’s argument on a dispositive motion that it had no duty to advise the association regarding appropriate limits for the structures. The court considered whether there was an extra-contractual enhanced duty of care to advise a client when a “special relationship” existed between the broker and the client. Judge Hurley ultimately determined that yes, an enhanced duty was present if a “special relationship” was present. This “special relationship” can arise from a myriad of unique factual scenarios i.e. a long relationship with the client, or the broker’s participation in the selection of coverage.

Tiara is the first case in Florida expressly holding that a broker may have an affirmative duty to advise a client when facts suggesting the existence of a “special relationship” are present. Importantly, the opinion, while persuasive, is not binding on any Florida court. While its ultimate impact is yet to be determined it certainly will play a role in the analysis of a broker’s duty going forward.

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