The Fourth District wrote to address the issue of who may properly deny facts set forth in a judgment debtor’s affidavit for exemption under section 222.12, Florida Statutes.  Caproc Third Avenue, LLC (“Caproc”) obtained a final judgment against Charles Donisi. A writ of garnishment was issued against Donisi’s personal bank accounts. Donisi filed an Emergency Motion to Dissolve the Writ and executed an affidavit asserting his accounts were exempt from garnishment. In response, Caproc’s attorney filed an “attorney’s affidavit” that denied under oath the facts set forth in Donisi’s affidavit.  The trial court dissolved the writ and found the affidavit filed by Caproc’s attorney legally insufficient to satisfy Caproc’s burden under §222.12 to deny the facts under oath.

Caproc appealed, arguing that it was permissible under the statute for its attorney to execute the sworn denial of the debtor’s exemption affidavit. The Fourth District disagreed, holding that the language of the statute was clear and unambiguous in its requirement that the party who sued out the process, and not the party’s attorney, deny under oath the facts set forth by the debtor.  The Court stated S. Attractions, Inc. v. Grau for the proposition that “[u]nder a statute requiring an affidavit to be made by a particular person himself, his agent or attorney cannot make it.” 93 So.2d 120, 125 (Fla. 1967).  The Fourth District affirmed the dissolution of the writ.

Our client’s home was burglarized by an unknown assailant. The client preformed all conditions precedent to coverage. The insurance company required that the husband, who lived at home at the time of the burglary and was the person who discovered the home burglarized, sit for an EUO. The problem was that by the time the EUO was scheduled, the husband was no longer living at home; and in fact a restraining order for domestic violence had been issued against him. Counsel for the client argued the innocent co-insured exception at the trial level, and we reasserted it at the appellate level.

The Circuit Court sitting in its appellate capacity overturned the trial courts summary judgment. Further, the reviewing court held that where an insurance policy does not expressly state whether the obligation to attend an EUO is joint or several, the ambiguity should be resolved as requiring the obligations and coverage to apply severally. The summary judgment finding that the failure of the husband to submit to an EUO was a material breach which barred the insured from recovering under the policy was reversed and remanded.  Our client was awarded appellate attorney fees pursuant to Florida Statute 627.428(1).

Florida Statue 95.11(4)(b) governs the limitations period for a medical malpractice action.  The section states that an action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . .”  In Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993), the Florida Supreme Court articulated the standard to be applied as follows:  “the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also that there is a reasonable possibility that the injury was cause by medical malpractice.”  Certainly there are injuries that clearly are caused by medical malpractice.  For example, going into surgery to have a cyst removed from your hand and waking to find yourare missing your left leg.  But what happens when you experience a less conspicuous injury and although your body is telling you one thing, the physician whose continuing care you are under is reassuring you that all is well and that in time, things will be better?  This is the precise issue involved in our case.  Essentially there was a factual dispute as to when the patient knew or should have been aware that her injuries may have been the result of medical malpractice.  And, instead of submitting that question to the jury for determination, the judge decided at summary judgment that the statute of limitations had run.  The Fourth District Court of Appeal reversed the judge’s decision in our favor and found that the judge had erred in taking that question from the jury.  The Court, recognizing the inherent trust placed upon a physician by a patient, stated “too great is the faith laypersons place in their physicians for the law to impute a duty on them to investigate malpractice in every change in diagnosis or treatment.”  (quoting from Cunningham v. Lowery, 724 So. 2d 176, 179 (Fla. 5th DCA 1999).  Thus, it appears the courts have tried to impose a balance between patient accountability and the importance of preserving a trusting doctor/patient relationship during and throughout treatment.  Most important, however, is that the question will often hinge upon a factual determination and will more often than not be left to the province of the jury to decide.