Court Finds that Subcontractor Lacks Standing to Appeal Summary Judgment Order Simply Because Subcontractor “Might” Lose at Trial Due to Order

Garret Murai | California Construction Law Blog

Cases sometimes take unanticipated twists and turns. Atlas Construction Supply, Inc. v. Swinerton Builders, Case No. D076426 (January 26,2021), involving a tragic construction accident, a motion for summary judgment, a motion for good faith settlement, and a stipulated dismissal, is one of those cases.

The Accident

Swinerton Builders was the general contractor on a residential construction project in San Diego, California. Swinerton contracted with J.R. Construction, Inc. to perform concrete work and with Brewer Crane & Rigging, Inc. to perform crane work on the project. J.R. Construction in turn rented a concrete column formwork approximately 10 feet tall and weighing 300 to 400 pounds from Atlas Construction Supply, Inc.

One day on the construction project, Marcus Develasco, Sr. and another co-worker, employees of J.R. Construction, climbed to the top of the formwork to adjust its size. The formwork, which had been positioned on the site by Brewer, was upright but unsupported by braces. When the co-worker stepped off the formwork, Develasco’s weight caused the unsecured formwork to topple over, killing Develasco in the process.

The Wrongful Death Lawsuit

Develasco’s family filed a wrongful death lawsuit against Atlas, Swinerton and Brewer, asserting a product liability claim against Atlas and negligence claims against all three defendants. Atlas, in turn, filed a cross-complaint against Doe defendants for equitable indemnity, contribution and declaratory relief and later substituted Swinerton as one of the Doe defendants.

While the case was pending, Swinerton filed a motion for summary judgment contending that the plaintiffs’ claims against Swinerton was barred under the Privette doctrine. Under the Privette doctrine, unless an exception applies, the hirer of a contract is not liable for injuries or death of an employee of the contractor. Plaintiffs filed an opposition to Swinerton’s motion. So too did Atlas, who argued that under the Hooker exception to the Privette doctrine, Swinerton was liable because it retained control over the safety of conditions on the worksite and that Develasco was killed because of Swinerton’s failed to ensure that conditions on the worksite were safe.

The Trial Court’s Granting of Swinerton’s Motion for Summary Judgment

The trial court issued a tentative ruling granting Swinerton’s motion for summary judgment. In its tentative ruling, the trial court expressly declined to consider Atlas opposition to the motion stating that “granting the motion would not necessarily extinguish” Atlas’ cross-complaint for indemnity, contribution and declaratory relief against Swinerton. However, in its tentative ruling, the Court also directed the parties to submit supplemental briefs on whether Atlas had standing to file an opposition to the motion.

In its supplemental brief, Atlas argued that it had standing because it was adverse to Swinerton having added Swinerton as a Doe defendant in its cross-complaint for indemnity, contribution and declaratory relief. Further, argued Atlas, it had standing because it would be precluded from arguing at trial that Swinerton was liable if the trial court granted Swinerton’s motion. In its final order, the Court sided with Swinerton, noting that the summary judgment statute found at Code of Civil Procedure section 437c does not require the court to “consider multiple oppositions to a motion for summary judgment” because the statute “identifies ‘opposition’ in the singular.”

Swinerton’s Motion for Good Faith Settlement

However, rather than seeking entry of judgment on its motion for summary judgment, Swinerton negotiated a settlement with the plaintiffs, whereby the plaintiffs agreed to dismiss their claims with prejudice against Swinerton in exchange for Swinerton agreeing to waive reimbursement of its costs totaling $5,349.63.

Thereafter, Swinerton filed a motion for good faith settlement and request for dismissal of Atlas’ cross-complaint. Atlas filed an opposition to Swinerton’s motion arguing, as it did in its opposition to Swinerton’s motion for summary judgment, that Swinerton was liable under the Hooker exception to the Privette doctrine. Atlas further argued that it estimated that Plaintiffs recovery at trial would be approximately $2.7 million, that Swinerton was responsible for 75% – 85% of this amount or $2 – $2.3 million dollars, and that  Swinerton’s settlement with the Plaintiffs for a waiver of $5,349.63 in costs was not a good faith settlement.

The Trial Court’s Granting of Swinerton’s Motion for Good Faith Settlement and Atlas’ Stipulated Dismissal

The trial court granted Swinerton’s motion for good faith settlement. However, the Court declined to grant Swinerton’s request to dismiss Atlas’ cross-complaint, finding that Swinerton did not meet its “burden [of establishing] that [Atlas’] claims in the cross-complaint [were] barred by the granting of the good faith settlement” determination.

Thereafter, Swinerton and Atlas filed a stipulated request for dismissal of Atlas’ cross-complaint against Swinerton to permit Atlas to file an appeal. The stipulation stated that the trial court’s order granting Swinerton’s motion for good faith settlement “eliminated any and all rights Atlas may have to recover under [the] cross-complaint,” and “there [was] no legal basis for a trial of Atlas’ cross-complaint against Swinerton . . .” Pursuant to the parties’ stipulation, the trial court dismissed Atlas’ cross-complaint without prejudice.

Later, plaintiffs filed a request for dismissal with prejudice of their complaint against Swinerton.

Atlas then appealed.

The Appeal

On appeal, Atlas challenged three orders: (1) the trial court’s order granting Swinerton’s motion for summary judgment; (2) the trial court’s order granting Swinerton’s motion for good faith settlement; and (3) the stipulated request for dismissal of Atlas’ cross-complaint against Swinerton. Swinerton, in turn, filed a motion to dismiss the appeal on the ground that the 4th District Court of Appeal lacked jurisdiction to consider Atlas’ appeal of the three orders.

Working in reverse order, the Court of Appeal first addressed the stipulated request for dismissal of Atlas’ cross-complaint against Swinerton. On appeal, Swinerton argued that the stipulated request for dismissal was not an appealable judgment because Atlas was still a defendant in the underlying wrongful death case of Plaintiffs. The Court of Appeal disagreed. Citing cases holding that the dismissal of a cross-complaint is a final judgment as between the parties to the cross-complaint, and is appealable, the Court stated:

As Swinerton notes, Atlas remains a defendant in plaintiffs’ underlying wrongful death action. However, the order dismissing Atlas’s cross-complaint resolved all pending causes of action between cross-complainant Atlas and cross-defendant Swinerton. Though the trial court denominated the order as a dismissal without prejudice, the parties did to stipulate to toll the statutes of limitations applicable to the cross-complaint or otherwise agree to facilitate future litigation of the cross-complaint. Thus, the dismissal order is sufficiently final for purposes of the one final judgment rule. Because the order disposed of all causes of action between the parties to the cross-complaint, and those parties did not preserve the voluntarily-dismissed cross-complaint for future litigation, the dismissal order is appealable as a final adjudication of Atlas’ rights against Swinerton.

As to the trial court’s order granting Swinerton’s motion for good faith settlement, Atlas argued on appeal that the order was an intermediate ruling that was reviewable as part of Atlas’ appeal from the order dismissing its cross-complaint. In response, Swinerton argued that the  order was not appealable because Atlas did not try to first seek a writ of mandate of the order.

While noting that Code of Civil Procedure section 877.6(e) permits a losing party to seek immediate appellate review of a good faith settlement determination by filing a petition for writ of mandate, the Court of Appeal noted that there was a split of authority among Divisions within the 4th District Courts of Appeal as to whether Section 877.6(e) is the sole means by which a party may seek review of a good faith settlement determination. 

Note: While splits of authority between Courts of Appeal are rare, splits of authority between divisions of the same Court of Appeal, are even rarer.

In Main Fiber Products, Inc. v. Morgan & Franz Insurance Company (1999) 73 Cal.App.4th 1130, the 4th District Court of Appeal (Division Two) held that Code of Civil Procedure section 877.6(e) is the “exclusive means of review” of a good faith settlement determination. However, in Cahill v. San Diego Gas & Electric Company (2011) 194 Cal.App.4th 939, the 4th District Court of Appeal (Division One) held that use of the term “may” in Section 877.6(e) (“[w]hen a determination of the good faith or lack of good faith of a settlement is made, any party aggrieved by the determination may petition the proper court to review the determination by writ of mandate”) (emphasis added) demonstrated that Section 877.6(e) was permissive, not mandatory, and not the exclusive means of seeking review of a good faith settlement determination. As such, held the Court of Appeal, “we conclude that Atlas is not barred from appealing the good faith settlement determination merely because it did not file a petition for writ of mandate under section 877.6, subdivision (e).

Finally, the Court of Appeal looked at whether Atlas had standing to appeal the trial court’s order granting Swinerton’s motion for summary judgment. On appeal, Atlas argued that order was an interlocutory ruling reviewable on appeal from the order dismissing its cross-complaint. Specifically, Atlas argued that it was aggrieved because as a co-defendant with Swinerton, Atlas shared an interest with the Plaintiffs in establish the negligence of Swinerton. Further, argued Atlas, it was aggrieved because by granting Swinerton’s motion for summary judgment, Atlas would be unable to attribute fault to Swinerton at the wrongful death trial. In response, Swinerton argued that the Court of Appeal lacked jurisdiction because Atlas was not aggrieved by the order granting Swinerton’s motion for summary judgment.

The Court of Appeal agreed with Swinerton. Noting that under Code of Civil Procedure section 902 “[a]ny party aggrieved may appeal in the cases prescribed in this title,” the Court explained that Atlas was not “aggrieved” in the true sense of the word because Atlas’ arguments assumed an outcome that might not actually come to pass:

We are not convinced the mere possibility of future harm to Atlas renders Atlas aggrieved for purposes of section 902. In short, Atlas’s argument rests on a series of ifs — (1) if the wrongful death action proceeds to trial, plaintiffs may move in limine to exclude Atlas from attributing fault to, or commenting on, the absence or involvement of Swinerton; (2) if the plaintiffs file this anticipated motion in limine, the trial court may find that its prior order granting Swinerton’s motion for summary judgment under the Privette doctrine was a determination that Swinerton was “without fault” (§ 437c, subd. (l)), and the court may grant plaintiffs’ motion in limine on that basis; and (3) if Atlas is unable to attribute fault to, or comment on the absence of, Swinerton during trial, it may be found liable to plaintiffs.

“As each of these hypothetical scenarios has not come to pass,” held the Court of Appeal, “Atlas’s alleged injury is mere speculation.” Thus, held the Court, “atlas does not have standing to appeal the summary judgment order in favor of its codefendant, Swinerton.”

Conclusion

Atlas provides a reminder that the Courts of Appeal are arbiters of final judgments not possible, or even extremely likely, judgments. I can understand why it’s a tough pill to swallow for Atlas and its attorneys though. The Court of Appeal didn’t address whether the trial court should have addressed Atlas’ opposition to Swinerton’s motion for summary judgment. And, if the Court of Appeal determined that the trial court should have considered Atlas’ opposition, I would put my money on Swinerton’s motion for summary judgment being denied. Rather, left with one arm tied behind its back (due to its inability to point the finger at Swinerton), the Court of Appeal basically held that Atlas should have proceeded to trial, because it’s still possible that it could have won. Tough one.

Injury to Employees Endorsement Eliminates Coverage for Insured Employer

Tred R. Eyerly | Insurance Law Hawaii

    The court granted summary judgment to the insurer based upon an endorsement which barred coverage for injuries to employees. Northfield Ins. Co. v. Z&J Mgt. LLC, 2020 N.Y. Misc. LEXIS 10801 (N.Y. Sup. Ct. Dec. 18, 2020).

    Ravi Sooklal sued his employer, Z&J Management LLC (Z&J), for injuries at the job site. Northfield, who had issued a CGL policy to Z&L, denied coverage based upon two endorsements. The first was titled “Injury to Employees of Insureds” and the second was “Employers’ Liability.” Northfield sued for a declaratory judgment and now moved for summary judgment. 

    Northfield argued Sooklal was injured during the course of his employment with Z&J. Under the “Employer’s Liability” exclusion, the policy did not apply to bodily injury to an employee of the insured arising out of and in the course of employment by the insured. Under the”Contracted Persons” exclusion there was no coverage for bodily injury to any person who was an employee and the injury arose out of employment by the insured. 

    Northfield met its burden of establishing that the exclusions applied in this case. Under the “Employer’s Liability” and “Contracted Persons” exclusions, the policy did not apply to bodily injury to employees of the insured. Therefore, summary judgment was awarded to Northfield. 

Florida Adopts Less Stringent Summary Judgment Standard

John A. Rine and Sarah Hock | Lewis Brisbois

On New Year’s Eve, Florida’s Supreme Court issued an amendment to essentially apply the federal summary judgment standard to cases in Florida state courts starting on May 1, 2021. See In Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20 1490 (Fla. Dec. 31, 2020) (per curiam). This change brings Florida in line with the majority of states (38).

Summary judgment is easier to obtain under the federal standard. A moving party need only show that the opposing party lacks the evidence to support its case at trial. Under the soon-to-be obsolete Florida standard, however, moving parties had to entirely “disprove the nonmovant’s theory of the case in order to eliminate any issue of fact.” See id. at 3. The nonmoving party could defeat a summary judgment motion by showing that there was a slight doubt on any material fact. See id. at 4-5.

This change is good news for defendants and their insurers. With summary judgment easier to obtain, weak claims can be defended prior to trial. Claims may be resolved more quickly and economically. The threat of summary judgment also gives defendants powerful leverage in settlement discussions. The shift may also reduce the backlog of cases accumulated during the suspension of jury trials over the past summer.

A. Florida’s Previous Summary Judgment Standard

Florida’s summary judgment standard was notoriously restrictive. Summary judgment could not be granted if there was even the slightest dispute on any material fact. See, e.g., Jones v. Dirs. Guild of Am., Inc., 584 So. 2d 1057, 1059 (Fla. 1st DCA 1991). The moving party had to show the facts were so clear that “nothing remain[ed] but questions of law.” Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995) (citing Humphrys v. Jarrell, 104 So. 2d 404 (Fla. 2d DCA 1958)). This meant summary judgment was nearly impossible to win. Because the nonmoving party could produce the slightest shred of evidence and defeat summary judgment, even meritless claims could reach trial.

B. The Federal Summary Judgment Standard

The federal summary judgment standard was articulated in a trilogy of United States Supreme Court cases in 1986. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The Celotex trilogy established that summary judgment is appropriate where the moving party shows that the opposing party does not have enough evidence to establish the elements of its claims. If no reasonable jury could return a verdict for the nonmoving party, summary judgment should be awarded.

C. Florida’s Change

Florida’s shift to this standard was prompted by a certified question from the Fifth District Court of Appeal in Lopez v. Wilsonart, LLC, 275 So. 3d 181 (Fla. 5th DCA 2019). Wilsonart concerned a fatal motor vehicle accident. Jon Lopez rear-ended a freightliner driven by Samuel Rosario. See id. at 831. His estate sued both Mr. Rosario and his employer, Wilsonart, LLC. See id. Dashcam video from Mr. Rosario’s truck showed that he had been driving in the center lane, gradually stopping at a red light, and then hit from behind. See id. at 832. This contradicted the plaintiff’s allegations that Mr. Rosario had suddenly swerved in front of Mr. Lopez. See id. at 833. The trial court granted summary judgment in favor of Rosario and Wilsonart based on the video evidence. See id.

On appeal, the issue was whether the court could grant summary judgment based on the video, or whether it must let the jury weigh the evidence. See id. The Fifth District Court of Appeal held that the latter was true, finding that the trial court had improperly weighed competing evidence on material facts. See id. at 833-834. It reversed the trial court’s decision. See id. Recognizing the strength of video evidence, however, it certified the question for the Florida Supreme Court to determine whether courts could make an exception and grant summary judgment where video evidence completely negates the nonmoving party’s claims. See id. at 834.

The Florida Supreme Court viewed this question as raising a larger issue — whether Florida’s summary judgment standard had an “unreasonable definition of what constitutes a ‘genuine issue’ in need of resolution by a jury.” Wilsonart, LLC v. Lopez, No. SC19-1336, 2020 Fla. LEXIS 2144, at *6-*7 (Dec. 31, 2020). It asked the parties to brief whether Florida should adopt the more permissive federal summary judgment standard. See id. The court was convinced and held that Florida would. See id. at *7. Simultaneously with this ruling, the court released amendments to Florida Rule of Civil Procedure 1.510 to bring the Rule in line with Federal Rule of Civil Procedure 56. In Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490 (Fla. Dec. 31, 2020) (per curiam).

D. Effect on Florida Jurisprudence

The Florida Supreme Court explained that the amendments to Rule 1.1510 will have three major impacts:

  1. Most importantly, the requirement that the moving party must negate or otherwise conclusively “disprove the nonmovant’s theory of the case in order to eliminate any issue of fact” is abandoned. See id. at 3. Instead, the movant will prevail if the nonmoving party cannot show that it will have sufficient evidence to establish the elements of its claims. See id. 3–4.
  2. There will be a new definition of what constitutes a genuine issue of material fact. The old Florida definition – the “slightest doubt” – is now replaced with the federal definition – whether a “reasonable jury could return a verdict for the nonmoving party”. See id. at 4–5; see also Jones v. Dirs. Guild of Am., Inc., 584 So. 2d 1057, 1059 (Fla. 1st DCA 1991) (discussing “slightest doubt” definition).
  3. Courts now must recognize the similarity between a motion for directed verdict and a motion for summary judgment. See id. at 2–3. In both contexts, the inquiry will now be identical. The court will consider “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id.

Conclusion

The importance of the Florida Supreme Court’s adoption of the federal summary judgment standard is tremendous. Skilled defense counsel may be able to dispose of weak or meritless claims more quickly and economically than before.

How will Florida’s Amended Summary Judgment Standard Affect Bad Faith Cases?

Matthew Lavisky | Butler Weihmuller Katz Craig

The Florida Supreme Court ended 2020 with a bang!  The Supreme Court amended Florida Rule of Civil Procedure 1.510 to adopt the federal summary judgment standard.  This change will affect different types of civil litigation in varying ways.  Here, we discuss how the change will affect bad faith litigation. 

Background of the amendment 

In 2019, Florida’s Fifth District Court of Appeal decided Lopez v. Wilsonart, LLC.1  In that case, the Estate of Jon Lopez appealed a summary judgment in favor of the defendants in a motor vehicle accident case.  The trial court granted summary judgment on the strength of a dash cam video.  The trial court concluded that the video evidence “blatantly contradicts the eye witness testimony and the opinion of plaintiff’s expert.”  The trial court relied, in part, on the United States Supreme Court’s opinion in Scott v. Harris,2 which applied the federal summary judgment standard.   

The Fifth District Court of Appeal reversed.  It agreed that the video evidence was “both compelling that Appellees were not negligent and directly contradictory to the Estate’s evidence in opposition to the summary judgment motion.”  However, under the Fifth District’s interpretation of Florida’s summary judgment standard, it felt compelled to reverse.  The Fifth District certified the following question to the Florida Supreme Court as one of great public importance: 

Should there be an exception to the present summary judgment standards that are applied by state courts in Florida that would allow for the entry of final summary judgment in favor of the moving party when the movant’s video evidence completely negates or refutes any conflicting evidence presented by the non-moving party in opposition to the summary judgment motion and there is no evidence or suggestion that the videotape evidence has been altered or doctored?

The Florida Supreme Court accepted jurisdiction.  It ordered the parties to address the following question in their briefs. 

Should Florida adopt the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)? If so, must Florida Rule of Civil Procedure 1.510 be amended to reflect any change in the summary judgment standard? 

On December 31, 2020, the Florida Supreme Court answered the question certified by the Fifth District in the negative.  Rather than engraft a special interpretive rule for cases involving video evidence, the Supreme Court was persuaded that Florida should adopt the federal summary judgment standard.3 Separately, the Supreme Court amended Rule 1.510.4  The Supreme Court concluded that the federal summary judgment standard “is more rational, more fair, and more consistent with the structure and purpose of our rules of civil procedure.”  The amendment added the following language to the existing rule: 

The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 

The amendment is effective May 1, 2021 to allow the opportunity for public comment on the amendment.   

The effect of the amendment on bad faith lawsuits 

Much has been written about “bad faith set-ups” in Florida.5  Suffice it to say, bad faith lawsuits in Florida often are not about actual wrongdoing by an insurer.  Instead, bad faith has become a game of tricks and traps to create a pretext for the plaintiff attorney’s eventual refusal to settle for the policy limits. 

Federal courts often see through this cynical exploitation of Florida bad faith law.  Federal courts grant summary judgment where no reasonable jury could conclude the insurer acted in bad faith.6  

In GEICO Gen. Ins. Co. v. Harvey,7 Florida’s Fourth District Court of Appeal reversed the denial of Geico’s motion for directed verdict.  The Fourth District concluded that Geico had not acted in bad faith, as a matter of law.  The Fourth District cited some federal cases in support.   

The Florida Supreme Court took jurisdiction over the case and quashed the Fourth District’s opinion.  The Supreme Court noted: 

Regarding the Fourth District’s reliance on federal case law, it has been observed that “[t]o the extent that the federal cases permit summary judgment based on Federal Rule of Civil Procedure 56 … they are of limited precedential value in Florida summary judgment cases” because Florida places a higher burden on a party moving for summary judgment in state court.8

Federal courts have likewise emphasized the distinction between the federal and state summary judgment standards.  For instance, in Martin v. Allstate Prop. & Cas. Ins. Co.,9 the court quoted the language from Harvey  set out above, and noted “to the extent Plaintiff relies on state court cases denying summary judgment, those cases are not necessarily on point.” 

To be clear, state courts can and do grant summary judgment in bad faith cases, but not as frequently as they should, at least in my view.  The arguments against summary judgment in state court are predictable: bad faith is based on the totality of the circumstances; a jury should decide that issue; federal cases are not applicable because of the differences in the applicable summary judgment standards. 

Effective May 1, 2021, Florida will apply the federal summary judgment standard.  Under the federal standard, the “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’”10 Under the federal standard, summary judgment is appropriate unless there is a dispute about a material fact that is genuine, “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”11  “If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted.”12  “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”13  

Under this standard, state courts should grant summary judgment in bad faith cases where no reasonable jury could find that the insurer acted in bad faith.  This is the standard applied by federal courts.  This should help dispose of some non-meritorious bad faith lawsuits in state court. 

The Florida Defense Lawyers Association (“FLDA”) made this point in its Amicus Brief in Wilsonart.14  FDLA noted in its brief the criticism of federal court opinions by the Florida Supreme Court in the Harvey decision.  FDLA wrote: 

Adopting the Celotex  Trilogy will help bring Florida and federal cases in conformity with one another in bad faith jurisprudence. Insurance companies will not be left guessing applicable case law and precedent. Insurance companies which cannot remove to federal court will not be subject to different standards and precedent. Adoption of the Celotex  Trilogy will assist insurance companies to fulfill their good faith claims handling obligations and training its employees. It will further help to maintain a competitive and stable insurance industry in Florida, prevent lengthy litigation of meritless lawsuits and fraud, and reduce lawyer-driven bad faith setups to increase the value of claims and create limitless insurance policies—all of which will reduce insurance rates for Floridians and permit litigants to proceed with confidence in the judicial system in bad faith cases, no matter whether the case is filed in state or federal court.

Conclusion 

The amendment to Rule 1.510 is not a panacea for the problems with Florida’s bad faith jurisprudence.   That said, it is a welcome development.  Time will tell how Florida state courts apply the new standard, but the amendment should allow insurers to more frequently obtain summary judgment in bad faith lawsuits where no reasonable jury could find that the insurer acted in bad faith. 


1 275 So. 3d 831 (Fla. 5th DCA 2019).

2 550 U.S. 372 (2007).

3 Wilsonart, LLC v. Lopez, SC19-1336, 2020 WL 7778226 (Fla. Dec. 31, 2020).

4 In re: Amendments To Florida Rule of Civil Procedure 1.510, SC20-1490, 2020 WL 7778179 (Fla. Dec. 31, 2020).

5 Gwynne A. Young, Johanna W. Clark, The Good Faith, Bad Faith, and Ugly Set-Up of Insurance Claims Settlement, Fla. B.J., February 2011, at 9.

6 Montanez v. Liberty Mut. Fire Ins. Co., 824 Fed. Appx. 905, 910 (11th Cir. 2020); Daniels v. GEICO Gen. Ins. Co., 740 Fed. Appx. 665, 670 (11th Cir. 2018); Kincaid v. Allstate Ins. Co., 573 Fed. Appx. 858, 863 (11th Cir. 2014).

7 208 So. 3d 810 (Fla. 4th DCA 2017).

8 Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 10 n.2 (Fla. 2018).

9 8:17-CV-3056-02CPT, 2019 WL 1003166, at *7 n.4 (M.D. Fla. Mar. 1, 2019).

10 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

12 Id. at 249-50.

13 Id.

14 https://efactssc-public.flcourts.org/casedocuments/2019/1336/2019-1336_brief_136016_amicus20curiae20initial20brief2dmerits.pdf

Floor Tile Defendant’s Motion for Summary Judgment Denied Due to Conflicting Expert Reports

Andrea M. Sciarratta | Goldberg Segalla

In this action, defendant American Biltrite Inc. filed a motion for summary judgment, arguing that the plaintiff has failed to establish general or specific causation for the plaintiff’s lung cancer in relation to American Biltrite’s products. The deceased plaintiff had alleged that his fatal lung cancer was caused by his exposure to asbestos over the course of his career as an electrician at three worksites, and the plaintiff had testified that floor tile made by American Biltrite was used at these worksites.

American Biltrite argued the plaintiff failed to demonstrate general causation as he did not offer any scientific evidence to prove that the floor tiles release chrysotile asbestos fibers at a level capable of being a substantial contributing factor to the development of lung cancer in the general population. In support of its claims, American Biltrite offered expert affidavits and reports, which concluded that the plaintiff did not have sufficient exposure to American Biltrite products to deem it a substantial contributing factor to his development of lung cancer.

In response, the plaintiff submitted its own medical expert report, demonstrating that the plaintiff was exposed to sufficient levels of asbestos to contribute to his development of lung cancer. In contrast to American Biltrite’s expert, the plaintiff’s expert claimed that cumulative exposure to asbestos from American Biltrite’s product was a substantial contributing factor to the plaintiff’s development of lung cancer and subsequent death.

Based on the conflicting expert reports, the court determined that there was a “credibility issue that cannot be resolved without jury consideration.” The court found that the plaintiff had produced evidence of causation related to American Biltrite and therefore denied American Biltrite’s motion for summary judgment.