Appellate Courts Applying Florida’s “New” Summary Judgment Standard: Takeaways and Practice Pitfalls
Just about two years ago, the Florida Supreme Court essentially...
Mike Holt provides sophisticated, client-focused representation on a diverse spectrum of legal issues. His areas of focus include toxic tort, product liability, commercial disputes, RICO, Unfair and Deceptive Trade Practice claims, business torts and insurance fraud. His background includes jury trials, arbitrations and appellate work.
Mike is involved in asbestos litigation at the trial and appellate levels, representing product manufacturers, distributors and premises owners. He manages thousands of cases throughout Florida. His experience includes a broad range of products including vehicle components, gaskets, packing, boilers, aircraft engines, diesel engines, industrial laundry equipment, floor tiles, glues, mastics and resins. In addition to asbestos, Mike handles matters involving exposure to other pulmonary irritants including silica, smoke and construction dust.
He also works with an array of manufacturers including recreational products, ladders, pressure cookers, athletic footwear, fitness equipment, earth retention systems and children’s products. He works with a team serving as national counsel for a personal watercraft manufacturer, and has appeared in several states including Alabama, California, Maryland, Minnesota, New York, Pennsylvania, Tennessee, Texas and Wisconsin. His work includes the management and coordination of discovery throughout several jurisdictions.
Many of Mike’s cases, regardless of origin, focus on claims brought under Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) and RICO statutes. This includes the prosecution of claims on behalf of companies impacted by insurance fraud. These complex matters can involve numerous participants across different industries. Mike’s work in this area has helped result in numerous and significant judgments on behalf of his clients. He also represents clients in contract disputes, privacy litigation, manufacturer-dealer relationships, and consumer claims.
Mike has written and lectured frequently on social media, including discovery, ethics and obtaining evidence from mobile devices. Before moving to Florida, he clerked for state Circuit Court Judge Lawrence T. Collins in Winona, Minnesota from 1997 to 1998, and for United States Magistrate Judge John M. Mason in St. Paul, Minnesota, from 1998 to 2000.
The plaintiff, a 15 year old girl, allegedly suffered traumatic brain injuries when she fell during a sumo wrestling game at school. The event sponsor, Mega Party, sought discovery of the plaintiff’s cell phone to refute the assertion that she could not function normally. The trial court agreed that discovery of the cellular device itself was relevant and ordered its production, subject to a circumscribed protocol. Plaintiff refused and sought a writ of certiorari from the Third District Court of Appeal. Plaintiff argued that while certain data stored on the cell phone might be relevant (like photographs), the entire device was not, and the production invaded the plaintiffs’ privacy.
Mega party argued, among other things, that production of the entire device was powerfully relevant to its defenses, particularly given the allegations of traumatic brain injury. Mega Party argued that, particularly in today’s society, adolescent activities can revolve extensively, if not exclusively, around cellular devices. The playing of games, taking of photos, phone calls, social media and a myriad of other programs and apps are all instantly and constantly available. The use of the device as a whole would be essential to the defense, particularly given plaintiff’s active usage.
The Third District Court of Appeal ultimately agreed with Mega Party, and denied Plaintiff’s certiorari petition.
The plaintiff sued BRP and her former father-in-law after she fell from a raft while boating. The defendants sought summary judgment because the plaintiff did not file her claim within the three-year limitations period applicable under maritime law. The plaintiff conceded maritime law applied, but sought to avoid the running of the statute based on equitable tolling. She specifically claimed that her domineering and controlling ex-husband prevented her from learning about her claims based on his desire to protect his father (the driver of the boat).
The trial court rejected this argument and granted summary judgment in favor of all defendants. The First District Court of Appeal affirmed. As to BRP, this was significant as to the Plaintiff’s product liability claims because BRP never communicated with the plaintiff at any point before her lawsuit. The “alleged ignorance of [the plaintiff’s] legal rights could not act to delay accrual of the statute of limitations.”
Circuit Court, Eleventh Judicial Circuit, in and for Miami-Dade County, Florida
This was a products liability action in which Plaintiff injured his ankle playing tennis while wearing a pair of Reebok tennis shoes. After deliberating for fourteen minutes, the jury found no defect in the tennis shoes.
The court granted Defendants’ motion for attorneys fees and costs, after which Plaintiff paid $48,700 in fees and costs to Defendants.
790 So. 2d 1158 (Fla. 5th DCA 2001)
Homeowners sued the client, a pest control company, for “stigma” damages arising from the treatment of their home for termites although the damage to the home had been repaired by the pest control company. Appeal followed a $300,000 verdict for the Plaintiffs. The appellate court reversed the jury verdict finding that “stigma” damages were not recoverable and that damages were limited to repair and replacement or diminution of the home’s value. In post appellate motions, the client sought and won recovery of its attorneys fees from the Plaintiffs.
Leff v. Ecker, 972 So. 2d 965 (Fla. 3d DCA 2007).
This was a $12 million dispute regarding disability benefits. The parties, following a lengthy mediation, entered into a settlement agreement. The plaintiff, however, refused to comply, and the defendant moved to enforce. After multiple evidentiary hearings, the trial court, although observing that defendant made a very compelling case, denied the motion, and the defendant appealed. The Third District Court of Appeal reversed, holding that the plaintiff bore the risk of any mistake regarding the amount of available insurance coverage, as he entered into the agreement despite being “suspicious”, and with limited knowledge of the facts.
Carr v. Lammie, 868 So. 2d 636 (Fla. 2d DCA 2004).
Mr. Carr sold a bail bond business to Mr. Holt’s client, Matthew Lammie. Mr. Carr sued Mr. Lammie, claiming that he was entitled to forfeiture remission proceeds for bonds issued and estreated before the sale. The trial court granted Mr. Lammie’s motion for summary judgment, finding that the contingent right to receive the remission proceeds were an asset of the bail bond business, and passed to Mr. Lammie upon the sale. The Second District Court of Appeal affirmed, holding that, as a matter of law, the parties transferred the right to receive the remission proceeds along with the other assets of the business.
Pycsa Panama, S.A. v. Tensar Earth Technologies, 625 F.Supp.2d 1198 (S.D. Fla. 2008), aff’d, 329 Fed. Appx. 257 (11th Cir. 2009).
Following the deadly collapse of a roadway retaining wall in the Republic of Panama, the company in charge of the construction project, Pycsa Panama, S.A., filed a $44 million lawsuit against the Atlanta-based wall component supplier, Tensar Earth Technologies, Inc., alleging that Tensar was liable for the collapse. After considering the laws of Panama, Georgia, and Florida and their application to the facts of this suit as well as the arguments of counsel, the U.S. District Court for the Southern District of Florida issued a 98-page opinion in which it granted summary judgment on all counts in favor of Tensar.
Rumberger, Kirk & Caldwell, P.A represented Tensar in the case.
The Plaintiff, Pycsa, had a contract with the government of Panama to build a tollroad around the country’s capital. A Pycsa affiliate, acting as the general contractor, purchased Tensar products for the construction of various retaining walls along the highway. In December of 2003, one of the retaining walls collapsed leading to the deaths of three Panamanian children. The Ministry of Public Works in Panama investigated the incident and blamed the collapse on improper construction practices, and also assessed a fine against PYCSA. Two years later, Pycsa filed a four-count products liability action against Tensar consisting of strict liability, negligence, negligent hiring, and negligent supervision. Specifically, Pycsa claimed that Tensar negligently designed the retaining wall, failed to provide defect-free products, and that Tensar’s distributor and licensee in Panama, Fundaciones, negligently installed the retaining wall causing it to collapse. Pycsa claimed $44 million in damages, consisting of lost profits, delay damages, demolition costs, reconstruction costs, idle machinery costs and interest, among others.
At the conclusion of the discovery period, Tensar moved for summary judgment, arguing that Panama law should be applied to bar Pycsa’s negligence and strict products liability claims. The defense also argued that Florida law barred the negligent hiring and supervision counts as Pycsa did not have any evidence that Fundaciones was Tensar’s agent. Tensar further moved for summary judgment on Pycsa’s lost profits and delay damages claims – arguing that these were too speculative as a matter of law – and on Pycsa’s $10.5 million damage claim belonging to general contractor affiliate.
The parties’ summary judgment briefs included extensive choice-of-law analysis on Panama, Florida, and Georgia law. In support of Panama law, the parties presented affidavits by former Justices of the Panamanian Supreme Court and held an 8-hour evidentiary hearing on the issue of Panamanian law in which the former Justices were cross-examined by counsel and the Court. Further, the District Court ordered additional briefing on the effect of the economic loss doctrine of Florida, Georgia, and Panama, as well as the applicability of the “Conditions of Sale” on back of the Tensar invoices to Pycsa’s products liability claims. In its 98-page opinion, the District Court granted summary judgment on all counts, finding that Panama law bars Pycsa’s negligence and strict liability claims and that Florida law bars the counts for negligent hiring and supervision. The Court has reserved jurisdiction to award costs to the prevailing party.
852 So. 2d 895 (Fla. 2d DCA 2003)
(Co-Counsel Sidley, Austin, Brown & Wood) Class certification order remanded.
The trial court and the Fourth District Court of Appeal
958 So. 2d 1093 (Fla. 4th DCA 2007)
Plaintiff alleged that a paramedical examiner negligently advised an applicant regarding his responses to a life insurance questionnaire. The trial court and the Fourth District Court of Appeal both found that the paramedical examiner owed no duty to the plaintiff. Summary judgement was affirmed.
William Mitchell College of Law — J.D., magna cum laude, 1997
University of Minnesota — B.A., American Indian Studies and Psychology, 1994