Case Law Update: Setoffs and the “Prevailing Party” Determination

Jacob Duval | Carlton Fields

The Diaz Fritz Group Inc. was the general contractor for the construction of an addition to the University Community Hospital in Tampa, Florida. Diaz Fritz hired a subcontractor, Hayward Baker Inc., to perform foundation work on the project in exchange for $290,000. When Hayward Baker completed its work, Diaz Fritz refused to pay claiming that Hayward Baker was responsible for damage caused to the hospital’s existing building. Hayward Baker denied responsibility and filed a claim of lien in December 2009 for the amount of the subcontract. The lien was transferred to a payment bond held by the surety, Westfield Insurance Co., and three lawsuits subsequently ensued:

  • 2010 Case — Hayward Baker sued Westfield to enforce its claim of lien against the bond.
  • 2011 Case — Diaz Fritz sued Hayward Baker for breach of contract, seeking to recover the cost of remediating the damage to the hospital, totaling $581,437.38.
  • 2012 Case — Diaz Fritz sued Hayward Baker’s insurance carrier (Zurich) for the same damages claimed in the 2011 case.

The 2012 case settled, and Zurich paid Diaz Fritz $450,000. The 2010 and 2011 cases were consolidated and tried before a jury. Before trial, the parties stipulated that Hayward Baker was entitled to the full amount of the subcontract — $290,000. At trial, the jury found that Hayward Baker was responsible for $266,569.32 of the damage caused to the hospital. Hayward Baker then moved to set off the $450,000 Diaz Fritz had received from Zurich against the damages entered against Hayward Baker in the jury trial. The trial court granted Hayward Baker’s setoff motion, which resulted in Diaz Fritz recovering nothing from the litigation and the entry of final judgment in favor of Hayward Baker for $290,000.

Following final judgment, Hayward Baker and Diaz Fritz both moved for an award of attorneys’ fees. Hayward Baker asserted that it was entitled to attorneys’ fees pursuant to Florida Statutes section 713.29, which allows for recovery of attorneys’ fees by the prevailing party in an action to enforce a lien or claim against a bond. The trial court denied both parties’ motions, finding that neither party was the “prevailing party” because Diaz Fritz prevailed on its claims regarding Hayward Baker’s damage to the hospital and Hayward Baker prevailed on its breach of contract claim and its motion for setoff.

On appeal, the Second District Court of Appeal reversed the trial court finding that the setoff issue was a “significant issue to be considered when making the prevailing party determination.” The court found that applying the setoff against Diaz Fritz’s damages resulted in Diaz Fritz receiving none of the benefit it sought in litigation, even though it prevailed on the hospital damages issue. On the other hand, Hayward Baker “received all of the benefit it sought in the litigation” because it was relieved of paying any damages to Diaz Fritz due to the setoff. The court noted that the setoff was “pivotal to the prevailing party determination” and that “[i]n the absence of the setoff, we would be inclined to agree with the trial court that there was no prevailing party.” However, because the setoff was a significant issue that deprived Diaz Fritz of the benefit it sought in litigation, Hayward Baker was the prevailing party and was entitled to an award of attorneys’ fees.

Hayward Baker, Inc. v. Westfield Ins. Co., No. 2D19-2893 (Fla. 2d DCA Dec. 30, 2020).

2021 California Construction Law Update

Garret Murai | California Construction Law Blog

Elvis may have been about 60 years too early. This Christmas looks to be a truly Blue Christmas as the nation grapples with rising infection, hospitalization and death rates due to COVID. But there’s always 2021 to look forward to, which, of course, also means new laws impacting the construction industry.

Due to COVID there were two unscheduled breaks during the second half of the 2019-2020 legislative session as legislators sheltered-in-place. As a result, there were fewer bills introduced and enacted than in previous legislative session. A total of 2,223 bills were introduced in 2020 compared to 2,625 bills in 2019, of which 428 bills made it to the Governor’s desk, and 372 were signed into law.

Among the bills signed into law were bills, unsurprisingly, related to COVID. In addition, the 2020 legislative session saw the passage of legislation creating a new licensing classification for residential renovation contractors, new laws expanding and clarifying when prevailing wages are required to be paid, and legislation extending the period during which seniors can cancel certain contracts.


AB 685 – Requires employers to provide written notice to employees who may have been exposed to COVID-19 at their worksite. The notice is required to include the same information as would be required in an incident report in a CalOSHA Form 300 injury and illness log unless the information is inapplicable or unknown to the employer. Also authorizes CalOSHA to restrict access to a place of employment, machine, device, apparatus, or equipment or any part thereof if, in the opinion of the division, it is in a dangerous condition.

SB 1159 – Establishes a disputable presumption that an employee who becomes ill or dies from COVID-19 contracted COVID-19 of the employee’s course of employment and is compensable as a workers’ compensation claim. This disputable presumption is to continue through January 1, 2023.


AB 2210 – Authorizes the Contractors State License Board (CSLB) to take disciplinary action against a licensed contractor for violations of tree worker safety regulations administered by the California Division of Occupational Safety and Health without regard to whether death or serious injury to an employee resulted from the violation. This bill also extends the time for the CSLB to bring disciplinary action against a licensed contractor for such violations from 180 days to 18 months.

SB 865 – Makes several administrative changes to the Dig Safe Act of 2016. In addition, beginning January 1, 2023, requires the all new subsurface installations, with the exception of oil and gas flow lines three inches or less in diameter located within the administrative boundaries of an oil field, be mapped using a geographic information system and that such information be maintained as a permanent record of the operator. Also requires operators to notify a regional notification center within 48 hours of discovering or causing damage to a subsurface installation.


SB 1189 – Creates a new “B-2” classification of contracting business called “residential remodeling contracting,” which is defined as projects that make improvements to, on, or in an existing residential wood frame structure that use at least three unrelated building trades or crafts for a single contract. The bill also includes in the definition of “home improvement” the reconstruction, restoration, or rebuilding of residential property damaged or destroyed by a disaster for which either the governor or president has declared a state of emergency. The bill also expands the type of contracting activity in a declared disaster zone for which a person without a contractor license can be prosecuted.

SB 1474 –  Requires the CSLB to retroactively reinstate an expired contractor license if a completed license renewal application is received with the appropriate fees within 90 days of the license expiration date.

Public Works Projects

AB 2231 – Provides a safe harbor from the payment of prevailing wages if a public subsidy is both less than $600,000 and less than two percent (2%) of the total project cost. For single-family residential projects,  provides a safe harbor from the payment of prevailing wages if a public subsidy is less than two percent (2%) of the total project cost. Applies to projects advertised for bid, or contracts awarded, on or after July 1, 2021.

AB 2311 – Requires public entities, when use of a skilled and trained workforce is required, to include in all bid documents and construction contracts a notice that the project is subject to skilled and trained workforce requirements.

AB 2765 – Requires the payment of prevailing wages for construction work done under private contract on a charter school if the project is paid in whole or in part with proceeds from a conduit revenue bond issued on or after January 1, 2021.

SB 588 – Permits state agencies, on contracts entered into on or after January 1, 2021, to withhold the lesser of $10,000 or the final payment owed to a prime contractor who fails to provide the required certification of amounts paid to a disabled veteran business enterprise when required to. A contractor so notified has fifteen (15) to thirty (30) days to provide such certification or it forfeits the withholding.

Residential Construction

AB 1551 – Prohibits “prepayment penalties” in PACE assessment contracts and prohibits PACE assessments on properties with reverse mortgages. Also requires that the PACE Financing Estimate and Disclosure be provided to the homeowner in printed, paper form, unless the property owner signs a printed paper document opting out of a hard copy, in which event the property owner may receive the disclosure electronically.

AB 2471 – Extends the right to cancel contracts for persons 65 years of age or older from three business days to five business days for the following transactions: home solicitation contracts, home improvement contracts, Property Assessed Clean Energy (PACE) assessment contracts, service and repair contracts, and seminar sales contracts.

I Don’t Always Notice The Case Number, But When I Do, I Don’t Know What It Means

Marguerite McGowan Stringer | Butler Snow

You just received a complaint filed against your client in federal court.  You log in to Pacer, click the “Query” tab to search for the case, and type in the series of numbers and letters that make up the case number to find the case and review the docket.

Have you ever wondered whether those numbers and letters in the case number have meaning?  And what about the information contained in the header added to each page of every filing in a federal case?  Understanding what this information means can quickly give you some helpful information about your case.

Let’s say the pending case against your client is filed in the U.S. District Court for the Western District of Tennessee.  At the top of opposing counsel’s Notice of Appearance you see a blue header with this information:

Case 2:20-cv-01234-BBD-dkv     Document 2    Filed 11/22/2020      Page 1 of 2      PageID 26

The first set of information contains the case number: 2:20-cv-01234-BBD-dkv.  Each element of the case number provides useful information about the case.

The leading “2” in the above case number represents the divisional office of the district court in which the case is filed.  Many of the 94 federal judicial districts are split into smaller divisions encompassing specified counties within the district.1  For example, the Western District of Tennessee consists of two divisions: the Eastern Division and the Western Division.2  Cases filed in the Eastern Division are heard in Jackson, Tennessee, designated by the number “1,” while cases filed in the Western Division are heard in Memphis, Tennessee, designated by the number “2.”

The “20” denotes the year in which the case was filed.  The two letters following the year indicate the case type: civil (“cv”), criminal (“cr”), or miscellaneous (“mc”).  The next five digits represent the numeric value assigned to identify the case.  This number is determined sequentially in relation to how many cases have been filed in that judicial district at the time the case was filed.

Finally, the sets of letters at the end of the case number are the initials of the presiding district judge (capital letters) and magistrate judge (lower case letters) assigned to the case.  Once the complaint is filed, a district judge and a magistrate judge are randomly assigned to the case.  Precisely how judge assignments are made varies by district; generally, each case is randomly assigned a district judge and a magistrate judge from the pool of judges within the division of the district court in which the complaint was filed.

Let’s look back to our hypothetical case number: 2:20-cv-01234-BBD-dkv.  The “2” indicates that the case was filed in the Western Division and will be heard in Memphis, Tennessee.  You can also see that this case was filed in 2020, is an adversary proceeding regarding a civil matter, and that it was the 1,234th case filed in the Western District of Tennessee that year.  Finally, the presiding district judge in this case is Judge Bernice B. Donald and the magistrate judge is Chief Magistrate Judge Diane K. Vescovo.3

The remaining information in the header provides you with context regarding the specific document you are viewing.

“Document No.” indicates the entry number of the filing on the docket.  Thus, “Document 2” means this document is the second entry on the docket.  If a document is attached to the filing as an exhibit, it is referenced with a dash after the document number.  For example, if an exhibit were attached to this filing, it would be labeled “Document 2-1.”

“Filed 11/22/2020” means this particular document was filed on November 22, 2020.

“Page 1 of 2” specifies the page number of the page you are viewing within the document itself and informs you of how many pages were filed in this document.  This page is therefore the first page of the document, which contains two pages in total.  Conversely, the “PageID” is a sequential pagination of the entire record for this case that uniquely identifies each page.  Thus, “PageID 26” means you are viewing the twenty-sixth page filed in the entire case.

Understanding this information makes it easier to look up the material you need as the case progresses.  Need to look up a case in federal court?  When typing the case number into the “Query” field, you only need to type in the year and sequential number-you can omit any zeroes preceding the sequential number.  Thus, using the case number above, you would only need to type “20-1234” to find your case.  Need to find a specific document in the case?  You can look it up using the Document No. or the PageID without having to search through the entire docket.

Now, the next time you are in a meeting and someone asks who the judge is, how long the case has been pending, or when a motion was filed, simply remember to look to the heading.


1. To look up the specific counties comprising each judicial district and whether a judicial district is split into divisions, see 28 U.S.C. §§ 81-131.

2. See 28 U.S.C. § 123.

3. The judges referenced in this case number are no longer presiding in the Western District of Tennessee.  The Honorable Bernice B. Donald is currently a judge on the U.S. Court of Appeals for the Sixth Circuit and the Honorable Diane K. Vescovo retired in May of 2020 after 25 years of service on the bench.  I had the honor of clerking for Judge Donald and Judge Vescovo before joining Butler Snow.

Deadlines. . . They’re Important. Project Owner Risks Losing Claim By Failing to Timely Identify “Doe” Defendant

Garret Murai | California Construction Law Blog

Earlier this year I filed a complaint in a court which I won’t identify other than to say that it wasn’t the San Francisco Superior Court. Immediately upon filing the complaint the Court gave notice of a trial date. As counsel for the party bringing the action, I appreciate this, as it eliminates the back and forth jostling that can sometimes occur when trying to get a trial date.

Here’s the kicker though. While I appreciate getting a trial date straight out of the gate. The date I got was . . . wait for it . . . not until 2022!

Those who litigate in California state courts know that the courts are understaffed and overworked. But you’ve got to give this un-named court credit for being upfront. Forget the “well, let’s see where this goes” niceties. Trial within a year? Fugetaboutit. Trial within a year and a half. Don’t even think about it. Trial within two years. It’s about as good as you’re going to get.

But it’s not just the courts who have had pre-pandemic issues only get worse since COVID. Everyone these days seem to be running slower in a COVID-induced brain fog. Seriously, it’s a thing. And not just among the Australians. The Irish are apparently feeling it too. And I have a sneaking suspicion so too are we Americans.

With Thanksgiving reduced to your eating a microwaved turkey dinner in front of your television set and Christmas and New Year looking less like reality and more like sugar plums dancing in your head, focused and diligent, should you remain, particularly if you’re litigating this holiday season or any season for that matter.

In the next case, Steciw v. Petra Geosciences, Inc., Case No. G057375 (July 29, 2020), 4th District Court of Appeal, homeowners in a construction defect case nearly lost their right to sue a geotechnical engineer in a claim brought under the Right to Repair Act by failing to serve the engineer within three years after naming the engineer as a defendant.

The Steciw Case 

On July 2, 2014, homeowners Eugene Steciw and others sued Shappell Industries and Toll Brothers, Inc. for construction defects arising out of the construction of their homes in a single-family housing development known as San Joaquin Hills in Laguna Niguel, California. In addition to naming Shappell and Toll Brothers as defendants the complaint also named unidentified defendants, including unnamed engineers, as “Doe Defendants.”

In October 2014, Toll Brothers filed a cross-complaint against various subcontractors but not against Petra Geosciences the geotechnical engineer on the project. Two months later, in December 2014, Toll Brothers filed a motion to dismiss the complaint or, in the alternative, stay the action to comply with the pre-litigation procedures of the Right to Repair Act.

On May 25, 2015, the Court granted Toll Brothers’ motion and stayed the action pending compliance with the pre-litigation procedures under the Right to Repair Act. Nine months later, on February 19, 2016, the Court ended the stay concluding that Toll Brothers “had its opportunity to inspect and repair the defects noticed by Plaintiffs, but has chosen not to.”

On August 2, 2017, the homeowners amended their complaint to name Petra Geosciences as “Doe 101.” According to the homeowners, they did not become aware that Petra Geosciences was a potentially responsible party until April 13, 2017 when Toll Brothers produced discovery identifying Petra Geosciences as the geotechnical engineer. The homeowners served Petra Geosciences on August 9, 2017, three years and 38 days after the original complaint was filed.

Petra Geosciences answered the homeowner’s amended complaint on September 7, 2017. Nine months later, on June 19, 2018, Petra Geosciences filed a motion to dismiss claiming that by serving Petra Geosciences three years and 38 days after the original complaint was filed, the homeowners failed to comply with Code of Civil Procedure section 583.210 which provides that a “summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.”

What happened next was interesting and even a bit eyebrow raising:

  • On July 10, 2018, two weeks before the scheduled hearing on Petra Geosciences motion to dismiss, the parties were in court on unrelated matters when the trial court decided sua sponte (Latin for “on its own motion”) to advance the hearing on the motion to dismiss, and announced its intention to grant the motion.
  • In response to comments made by the homeowners’ counsel that the hearing was not scheduled until two weeks later, the trial court responded, “I was told they are advanced to today, and whether you like it or not, I’m going to deal with them, and you can figure out what you’re going to with it.” According to the trial court, the case had “spun wildly out of control.” When asked by the homeowners’ counsel whether they could file their opposition that day, the trial court responded, “[t]he way it works is, file when you can. I’m not going to turn it down. I start reading. And when I get bored, stop reading. Put the good stuff up front.”
  • At the conclusion of the hearing, the trial court stated, “[a]t this point, it will all be under submission. I have to go back and review this. And don’t be surprised if you there’s not much changed between what the minute order will say and what I already said, but if get open — that’s why you’re here. You’re here to get me to think about it.”
  • Later that day, the homeowners’ counsel filed a 101-page opposition including exhibits.  However, the trial court’s minute order, which was entered the following day on July 11, 2018, rather than stating that the court had taken the matter under submission as the court said that it would, stated that it was the trial court’s decision to grant Petra Geoscience’s motion to dismiss.
  • After the trial court’s minute order was entered, the homeowners’ counsel filed a motion for reconsider on the ground that the trial court had not considered its 101-page opposition. The Court denied the motion for reconsideration without explanation and later entered a judgment of dismissal in favor of Petra.

Counsel for the homeowners appealed.

The Appeal

On appeal, the 4th District Court of Appeal noted that under Code of Civil Procedure section 583.210 even defendants identified as “Doe” defendants must be served within three years after an action is originally filed.

However, explained the Court of Appeal, the three year deadline is tolled under certain circumstances under Code of Civil Procedure section 583.240:

In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(a) The defendant was not amenable to the process of the court.

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(c) The validity of service was the subject of litigation by the parties.

(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.

Under Code of Civil Procedure section 583.240, explained the Court of Appeal, “[i]t is self-evident that a party must be identified before it can be served”,  that “[i]n many cases, formal discovery is the only reasonable means of identifying a party,” and that “[i]n such cases, if a stay prevents discovery, it also, as a practical matter, impedes (affects) service.”

However, the Court of Appeal was careful to make two points with respect to subdivision (b) of Code of Civil Procedure section 583.240.

First, explained the Court of Appeal, tolling is appropriate where discovery is “reasonably necessary” in order to determine the identity of a “Doe” defendant. This does not mean that discovery is “essential” in determining the identify of a “Doe” defendant. The Court of Appeal gave the following example:

For example, suppose plaintiffs could have identified Petra by reviewing documents in the building inspector’s office, but Petra was only identified in an obscure footnote. We would not necessarily expect plaintiffs to find that information as a matter of course, and thus formal discovery would be reasonably necessary to identify Petra, even though it may have been technically possible to do so without discovery. A plaintiff need not go to extraordinary lengths.

Second, explained the Court of Appeal, if a stay did not prohibit service, and if the homeowners had a practical means of identifying Petra Geosciences as a “Doe” defendant without formal discovery, then no tolling would apply.

Thus, explained the Court:

[T]he proper focus here is on whether the stay affected service as a practical matter by depriving plaintiffs of the only reasonable means of identifying Petra. If plaintiffs did have other reasonable means of identifying Petra, then, because the stay itself did not directly prohibit service, the stay did not affect service. It is, after all, still a plaintiff’s burden to serve all parties within three years of filing the complaint. And if there were practical and reasonably discoverable means of doing so without formal discovery, then the stay did not impede service and the tolling provision does not apply.

However, the Court of Appeal remanded the case back to the trial court, holding that whether the trial court’s stay of the action practically impeded the homeowners from identifying Petra Geosciences as a “Doe” defendants was a decision for the trial court to make.


So, there you have it. In multi-party construction litigation cases, as most typically are, you need to name your “Doe” defendants within three years of filing your complaint, or be able to show that that you had practical ability to determine the identity of a “Doe” defendant within those three years.

Jury Duty? No Thanks, Say Many, Forcing Trials to be Delayed

Dave Collins | Claims Journal

Jury duty notices have set Nicholas Philbrook’s home on edge with worries about him contracting the coronavirus and passing it on to his father-in-law, a cancer survivor with diabetes in his mid-70s who is at higher risk of developing serious complications from COVID-19.

Philbrook and his wife, Heather Schmidt, of Camarillo, California, have been trying to convince court officials that he should be excused from jury duty because her father lives with them. But court officials told him that is not a valid reason and he must appear in court early next month.

“My main concern is you still have to go into a building, you still have to be around a set number of people,” said Philbrook, 39, a marketing company editor. “In an enclosed space, how safe are you? It just doesn’t feel like a right time still to be doing that kind of stuff on a normal basis.”

People across the country have similar concerns amid resurgences of the coronavirus, a fact that has derailed plans to resume jury trials in many courthouses for the first time since the pandemic started.

Within the past month, courts in Hartford, Connecticut, San Diego and Norfolk, Virginia, have had to delay jury selection for trials because too few people responded to jury duty summonses. The non-response rates are much higher now than they were before the pandemic, court officials say.

Judges in New York City, Indiana, Colorado and Missouri declared mistrials recently because people connected to the trials either tested positive for the virus or had symptoms.

“What the real question boils down to are people willing to show up to that court and sit in a jury trial? said Bill Raftery, a senior analyst with the National Center for State Courts. “Many courts have been responsive to jurors who have said that they’re not comfortable with coming to court and doing jury duty and therefore offering deferrals simply because of concerns over COVID.”

Also this month, state court systems in Connecticut, New York and New Jersey and courts in Denver, Colorado, were among those to suspend all jury trials because of rising virus rates. On Friday, federal officials announced that about two dozen U.S. district courts across the county have suspended jury trials and grand jury proceedings because of virus outbreaks and too few people showing up for jury duty.

Courts are under pressure to resume trials because of the case backlogs piling up during the pandemic.

A few courts have held trials in person and by video conference. Although video conferences may appear to be the best bet, many criminal defense lawyers oppose them because it’s harder to determine witness credibility and to see if jurors are paying attention, said Christopher Adams, a lawyer in Charleston, South Carolina, and president of the National Association of Criminal Defense Lawyers.

“For almost everybody, there is no compelling need for trials to go forward during the pandemic,” he said, adding that most courts are not holding jury trials at the moment.

Adams said another concern is how representative juries would be if trials went ahead _ the virus’ impact and the level of concern about it across different demographics, such as Black, Latino and elderly populations that are dying at higher rates, could affect who feels safe to serve jury duty.

“What we can’t allow is to have trials where there’s not a fair cross section of the community represented,” he said.

But many criminal defense lawyers are pointing to a major issue with not holding trials _ defendants who are detained while awaiting trial. Although jails and prisons across the country have released thousands of low-risk inmates because of concerns about the virus, many people remain locked up in pretrial detention.

A case in federal court in Hartford, Connecticut, offers a glimpse of how the virus can upend proceedings.

In October, 150 people were summoned for jury duty for the trial of Amber Foley, who is fighting child pornography charges and demanding her constitutional right to a speedy trial. It would be the first criminal trial in Connecticut, in state or federal court, since the pandemic began.

Only about half the potential jurors showed up and many others were excused for various reasons including concerns about COVID-19. Only 19 people were left, short of the 31 people estimated to be needed to pick a jury of 12 and one alternate juror.

And then, two court security officers tested positive for the virus, forcing the temporary closure of the courthouse for cleaning and prompting Judge Vanessa Bryant’s law clerk to go into isolation and get tested because of contact with the officers.

Bryant decided last week to postpone Foley’s jury selection until mid-January. Like judges in other parts of the country, she ruled the interests of public health outweigh those of a speedy trial.

“Despite every effort being made by the Court, the Court must reluctantly conclude that it is unable to empanel a representative jury from the 200 prospective jurors summoned without jeopardizing the safety of all trial participants,” Bryant wrote in a ruling.

Federal officials have designated one courtroom for jury trials in each of the three federal courthouses in Connecticut, with an entire second courtroom set aside for jurors to gather for breaks and deliberations. Some plexiglass has been installed, air circulation systems have been improved and seating arrangements have been reconfigured for social distancing. Masks are required.

Foley has been free on bail awaiting trial. Her lawyer, Todd Bussert, argued in court documents that the coronavirus does not trump Foley’s speedy trial rights and other courts around the country have held trials during the pandemic. He also noted he has two children attending in-person classes in public schools.

“That schools can operate and remain open … even when members of their communities test positive for COVID-19 … belies any hyperbolic assertion seeking to abridge defendants’ rights,” he wrote.

In San Diego, a criminal case had to be postponed last month because too few people showed up for jury duty. Officials twice summoned 900 people, but only about 40 people showed up each time, KGTV reported.

In Norfolk, Virginia, efforts to resume jury trials during the pandemic stalled recently because roughly nine out of 10 possible jurors weren’t showing up in court, The Virginian-Pilot reported.

Failure to report to jury duty is a crime in most places. Punishment can include fines and, in some cases, short jail sentences. Officials in some court systems have said they were considering increasing enforcement to improve response rates.

Philbrook, the California man, said he and his wife are trying to get a letter from his father-in-law’s doctor saying his health could be put in jeopardy if Philbrook has to serve jury duty. Philbrook also is concerned for his own health.

“You just never know with this virus. It seems to not care,” he said. “It doesn’t seem to care how healthy you are or unhealthy you are. You hear about healthy people getting it really badly. That bothers me. I feel I’m healthy. I feel like, OK, if I get it, I should be OK, but I don’t actually know.”