Last week, in West Kendall Holdings, LLC v. Downrite Engineering Corp., No. 3D12-781 (Fla. 3d DCA April 24, 2013), the Third District Court of Appeal dodged an economic loss rule issue in one of the first cases to address the doctrine since the Florida Supreme Court seemingly banished it from all non-product liability jurisprudence in Tiara Condo. Ass’n v. Marsh & McLennan Cos., 38 Fla. L. Weekly S151 (Fla. Mar. 7, 2013).

This is what the Third had to say on the economic loss rule:

The third and final asserted basis for dismissal is the economic loss rule. It would appear that this might limit damages on West Kendall’s negligence count (count III).³ However, a plaintiff is entitled to amend a complaint once as of right before a responsive pleading is filed. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 566-67 (Fla. 2005). The dismissal motion in this case is not a responsive pleading. Id. Therefore, West Kendall should have been given an opportunity to amend before facing the dismissal of count III.

³ But see Tiara Condo. Ass’n v. Marsh & McLennan Cos., 38 Fla. L. Weekly S151 (Fla. Mar. 7, 2013).

The Third did not expound on what type of negligence claim was made by West Kendall Holdings. This appeal arose out of a construction contract dispute, so perhaps the claim was grounded in product liability such that the ELR would bar the claim under the Supreme Court's decision in Tiara.

But it looks like we will have to wait for a more direct challenge to the economic loss rule before the Third enlightens us on the limits of Tiara and the boundaries of the ELR.

This past week, the Third District Court of Appeal once again admonished practitioners and judges for their penchant for proposed orders.

The  reproach came in Moriarty v. Murton Roofing Corp., Nos. 3D11-1632 & 3D10-3176 (Fla. 3d DCA April 24, 2013), where the Third  reversed a directed verdict, again underscoring just how difficult it is to uphold a DV on appeal.  This particular DV was worth $2 million (the amount the jury awarded against Moriarty in its verdict).

The Third reversed the DV partly because:

[T]he trial court entered Moriarity’s proposed ten-page order verbatim. This fact alone does not compel reversal, given that Escadote had an adequate opportunity to present its own proposed order and to voice objections to Moriarity’s version. Cf. Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004) (holding verbatim adoption of proposed final judgment was reversible error where trial court failed to give opposing party opportunity to object or to submit his own proposed final judgment). Nevertheless, Florida courts have been critical of such a practice.

For the Third, this proposed order appeared too inaccurate:

Perhaps the most significant inconsistency between the ten-page order and the court’s rulings at trial involved one of the theories of recovery. In its order, the trial court found that appellant had not pled a claim for diminution of value. At trial, however, when appellees objected to evidence being presented on this theory, and argued for its exclusion on the basis that this was a “new claim” which had not been pled, the trial court overruled the objection:

COURT: Well, they always pled diminished value. I made that ruling the first day. They pled it, so you’re on notice that they’re trying to get it. You know what the law is. You’re the one that brought it all up to me about how you get diminished value only if it’s permanently damaged, but if it’s not permanently damaged, commercial waste, you only get the cost to repair.
So you’ve known all along they were going to diminished value, and they are going to have to prove it was not repairable . . . .

To be sure, the Third emphasized that it was reversing Moriarty's DV mostly due to its de novo review "of the entire record," but the inaccurate proposed order may have served to tip the balance towards reversal (considering the Third devoted essentially an entire page of the 4 page opinion to its scolding footnote on the proposed order).

For that reason, when drafting their proposed orders, cautious trial attorneys would do well to hew religiously to the oral pronouncements made during trial - no matter how unfavorable - in order to better protect their directed verdicts and proposed orders on appeal.  As the Third's opinion demonstrates, playing it too fast and loose when drafting could potentially result in multi-million dollar exposure for your clients.

This post is slightly off-topic for this blog, but should (hopefully) be interesting nonetheless. Today the New York Times had an article highlighting the debate springing up around law enforcement's interactions with the surviving Tsarnaev brother suspected of bombing the Boston Marathon.

At issue is whether Dzhokhar Tsarnaev should be read his Miranda rights before being questioned by authorities, or whether the "public safety exception" applies. But the scope of this exception is quite narrow, extending only to questions aimed at ending an ongoing or imminent threat to the public safety, and not to questions aimed at building a criminal case against the suspect.

Orin Kerr has a very concise and informative post on the public safety exception and Miranda rights over at the Volokh Conspiracy blog.

Professor Kerr makes the point that being read your Miranda rights is not a right in and of itself unless the government seeks to introduce a suspect's statements later at trial. And so even without the public safety exception, the FBI and intelligence agencies should be able to question Tsarnaev quite extensively about other plots and participants without ever "reading him his rights," provided they don't intend to use those statements later at trial.

Further complicating the issue of how to treat Dzhokhar Tsarnaev is the fact that he is a naturalized American citizen (he received his citizenship on 9/11/12), and he was not captured in the battlefield (even though Boston quite resembled one this past week). Thus, it will be somewhat of a stretch to label him an "enemy combatant," in order to try him in a military tribunal, despite calls from Senators John McCain and Lindsay Graham to do just that.

But the war on terror is defined by its nebulous character; it is often impossible to tell where its battlefield ends, and where domestic law enforcement begins. And so as our elected officials determine how to proceed with investigating Dzhokhar Tsarnaev, it appears we are once again at that intersection.

Update: Here is a more extensive article from the NYTimes on all of the legal issues surrounding the Boston Marathon bombing suspect, including quotes from Alan Dershowitz:

“This is an American citizen being tried for a crime that occurred domestically, and there is simply no way to treat him like an enemy combatant — not even close,” said Alan M. Dershowitz, a Harvard law professor and seasoned defense lawyer.

Sometimes the statute of limitations appears especially harsh. And no more so than in today's opinion out of the Third District Court of Appeal in Rubio v. Archdiocese of Miami, Inc., No. 3D12-85 (Fla. 3d DCA April 17, 2013), authored by Judge Logue, and joined by Judges Lagoa and Salter.

Rubio brought a claim against the Archdiocese for sexual abuse allegedly suffered at the hands of his parish priest nearly 30 years ago.  He alleged that the Archdiocese actively covered up the priest's reprehensible conduct after discovering it.

The Third affirmed the trial court's dismissal of the case based on the statute of limitations, but not without a heavy heart:

In upholding the dismissal of the complaint in this case because of the delay of several decades in filing the claim, we are mindful that society benefits when survivors of child sexual abuse come forward and bear witness to what they were forced to endure as children. We certainly do not intend to discredit the courage of these survivors who break the silence that shielded their abusers. We hold only that Rubio’s lawsuit for money damages cannot be filed so long after the alleged injury was inflicted.

Rubio was attempting to avoid the statute of limitations through the doctrine of equitable estoppel; however, the Third stood firmly on the doctrine's standard, writing that Rubio had alleged no facts that the Archdiocese caused or induced him to refrain from filing suit within the limitations period.

Citing to a Fourth District Court of Appeal case - also against the Archdiocese for similar abuse cover-ups - the Third explained why equitable estoppel didn't apply here:

We agree with the Fourth District’s decision in John Doe No. 23. As the court found in that case, so too, here, Rubio knew the abuse had occurred, knew the identity of the abuser, and knew the abuser worked for the Archdiocese. Yet, the amended complaint fails to allege any acts of the Archdiocese towards Rubio that caused him to delay filing his claims for the three decades that elapsed since the time he had allegedly been abused as a child. As such, there is simply no basis upon which to apply the doctrine of equitable estoppel.

 So here is the question: because an appellate court views all facts alleged in the complaint as true on appeal for purposes of the motion to dismiss, would this action have survived if Rubio simply added a line alleging that psychological harms stemming from his abuse induced or caused him to refrain from filing within the limitations period?

And maybe the Third would entertain this allegation, at least on appeal from a motion to dismiss, and especially in light of its quote from Major League Baseball v. Morsani, 790 So. 2d 1071, 1078 (Fla. 2001):

The two concepts, i.e., the statute of limitations and equitable estoppel, thus work hand in hand to achieve a common goal, the prevention of injustice.

Last week, the Third District Court of Appeal jumped in the DeLorean to bring us Estate of Eisen v. Phillip Morris, USA, Inc., No. 3D12-1114 (Fla. 3d DCA April 10, 2013).

According to the Third, even if your plaintiff lacked capacity (a.k.a. standing) to sue at the time he filed the complaint, an amendment to substitute the original plaintiff for someone new can still relate back to the date of the complaint!

Eisen was an "Engle-progeny" case, meaning the decedent's estate, Mrs. Eisen, was suing Phillip Morris for her smoking-related wrongful death.  Under Engle, if the plaintiff's smoking-related injury accrued before the original Engle class-action, and the plaintiff's case was filed prior to the January 11, 2008 cut-off date set by the Florida Supreme Court, then the plaintiff need not prove that the Engle-defendants' conduct of selling cigarettes was negligent (based on res judicata from Engle's jury findings), only that legal causation and damages exist.

Mrs. Eisen's surviving spouse, Mr. Eisen, filed the wrongful death complaint on his wife's behalf prior to January 11, 2008; but he was not the proper personal representative of the estate, and thus he lacked capacity.  By the time the proper party was substituted in as nominal plaintiff, the Engle statute of limitations had run.  

And so the question facing the Third DCA was whether the substitution  of plaintiff could relate back to before the statute of limitations ran.

To answer this, the Third distilled the relation-back doctrine down to four factors.  When deciding whether to grant leave to amend in such circumstances, a court should ask:

• Whether the timely-filed action gave the defendants fair notice of the legal claim and the underlying allegations; 
• Whether there is an identity of interest between the original and substituted plaintiff; 
• Whether the amendment caused any prejudice to the defendants; 
• Whether the amendment to substitute plaintiffs would create a “new” cause of action. 

Id. at 12.
Applying these factors, the Third determined that the substitution of parties should have related back to before the statute of limitations had run.

Given that the proposed amendment: merely substituted one nominal plaintiff for another; involved nominal plaintiffs sharing an identity of interest; resulted in no change to the real parties in interest; did not affect or alter the underlying allegations or claims in the complaint; and caused no resulting prejudice to the defendants, the amendment to substitute nominal plaintiffs should have been permitted and should have related back.

Id. at 25-26. In other words, there really was no "new action" here, despite Mr. Eisen's original lack of standing.  Nothing about the suit actually changed except the name of the person bringing it.  Phillip Morris suffered no prejudice from this substitution (besides the fact that the case wasn't dismissed!).