Big WIN: Court Overturns $27 Million Verdict
A multimillion verdict against a Tampa alarm company is overturned by the 5th District Court of Appeal.
By David R. Corder
Robert Biasotti knew well the value of the Slavin doctrine. He cited the legal precedent nearly three years ago in an appeal on behalf of Markborough Development Co. Ltd. against Thomas and Debra Jackson. But the two sides in that dispute settled about a year ago prior to oral arguments in the 2nd District Court of Appeal. So Biasotti didn't get the satisfaction of seeing the court make a formal determination on the validity of his argument.
That changed late last month, however, when the 5th District Court of Appeal overturned an unrelated $27 million jury verdict on the Slavin doctrine - the "completed and accepted rule" - against Foreline Security Corp., a holding of Tampa-based Engage Technologies Inc.
The verdict is considered one of the largest ever rendered in the district that serves Citrus, Hernando, Lake, Marion and Sumter counties. It is also one of the largest for Biasotti as lead counsel in an appellate decision.
A three-member panel unanimously acknowledged Biasotti's argument that 5th Circuit Senior Judge John W. Booth erred by refusing to instruct a Lake County jury on the Slavin doctrine. The panel ordered a new trial in Marishia Scott's civil lawsuit against the Tampa company following a horrific bank robbery.
"That was a pretty important piece of the case from the outset," Biasotti, a shareholder in the St. Petersburg office of Carlton Fields PA, says about the Slavin doctrine. "Our argument was that the law should have been explained to the jury so they had the benefit of what the law in Florida is before they deliberated.
"There were several issues in the case," he adds. "We raised three. The court wrote on all three, and found in our favor in all three."
Officials at the Tampa company credit Biasotti for his persuasive arguments against what they call an unreasonable verdict. "Bob Biasotti did an excellent job laying this out for the appellate court, which then threw out the jury verdict and remanded for a new trial," says Richard Laplante, Engage Technologies' senior vice president. "In our opinion, it was the correct decision with respect to law and fact."
In 1993, United Southern Bank (USB) retained the Tampa company to install an alarm system during construction of the bank's Mount Dora branch.
It was routine work for the company that had installed alarm systems for customers such as Walt Disney World, Tampa Electric Co., Gevity HR, the Kennedy Space Center. The Mount Dora job included system wiring, silent-alarm panic buttons, wireless "bait money clips" in cash drawers linked to a silent alarm, security cameras, monitors and VCR. The system worked for years.
Then on March 20, five years ago, prison parolee Fred Anderson Jr. walked into the bank branch with orange juice and doughnuts. His presence apparently didn't cause too much concern for the two on-duty bank tellers. After all, Anderson visited the bank branch days earlier, posing as a college student doing research on a banking career. He purportedly gained the confidence of the bank branch's head teller who met Anderson at a church.
On that day Anderson waited for all the customers to leave the bank. There were no other bank employees, not even a guard. Then he went outside to retrieve a gun from a car. Anderson returned, pointed the gun at Scott and fired it near her. He ordered Scott and co-worker Heather Young into the bank vault. Then Anderson asked, " 'Who wants to die first?' " He shot and killed Young. Scott survived a gunshot but lives as a quadriplegic.
Authorities caught Anderson, now 35, as he left the building. A jury found him guilty of first-degree murder, and a judge sentenced him to death.
Theories of liability
In the lawsuit against Foreline, Scott's attorney - Orlando solo practitioner Roland A. Sutcliffe Jr. - accused the Tampa company of several acts of negligence.
For one, Sutcliffe argued the Tampa company installed a video monitor and VCR at a site in full view of the public, "causing the robber to select that particular bank to rob." For another, he argued the Tampa company failed to install panic buttons at the branch's teller stations and in the vault. Then he accused the Tampa company of fraudulently and negligently touting the alarm system as a "UL listed burglary and holdup alarm system."
A Lake County civil jury found in favor of Scott on nearly all her claims but apportioned 50% fault to the bank and 50% to the Tampa company. During the damages phase of the bifurcated trial, the jury awarded Scott about $27 million in total damages.
However, the judge disregarded the jury's recommendation and entered full judgment against the Tampa company. He reasoned state law did not apply in this case for purposes of allocating damages for comparative negligence.
To protect its interests, the insurer for the Tampa company retained Biasotti as lead attorney, with Carlton Fields shareholder Sylvia Walbolt serving as co-counsel.
Right away Biasotti recognized several potential flaws in the facts underlying Booth's decision. He honed in on compelling exculpatory evidence presented at trial by the Tampa company's attorneys - Humberto H. Ocariz of Shook Hardy & Bacon LLP, Miami, and Clermont solo practitioner Philip N. Smith. For one, trial testimony revealed that a bank official ordered installation of the security monitor and VCR in the glassed-in branch manager's office.
But Biasotti reasoned Booth erred by not instructing the jury on the merits of the 1959 appellate decision in Slavin v. Kay (108 So. 2nd 462). That case produced the "completed and accepted rule."
"The Slavin doctrine extinguishes the liability of a contractor for a defect by shifting the duty of care originally owed to others by the contractor to the accepting owner as long as any defects are patent," according to the opinion written by 5th DCA Judge Earle W. Peterson Jr. Patent means a defect apparent to a typically observant individual.
In this instance, Biasotti argued that it had been six years since the Tampa company installed the alarm system. Therefore, the bank had long since assumed any liability under the Slavin doctrine.
"Foreline presented evidence that it had completed the installation of USB's security system six years before the robbery, that USB had accepted the security system in 1993 and that USB and its head of security were required by federal law to 'select, test, operate and properly maintain' their security system," Peterson writes. "Foreline also asserted that USB and its head of security were in a superior position to observe the system on a day-to-day basis and could discover any patent defects in the system, such as the danger alleged by Scott of placing the VCR and monitor in the public's view and the danger posed by any alleged lack of panic buttons in various locations in the branch even though some of those locations had been wired for panic devices with USB's knowledge."
Such facts account for why Booth's decision came as a shock to officials at the Tampa company.
"This situation is horribly tragic and the person truly responsible for it is on death row," Laplante says. "It was not the fault of the security system installed by Foreline Security Corp. The system was designed correctly, it was designed in an industry-standard fashion, it was accepted by the owner and it worked as designed.
"A $27 million judgment under those facts is absurd," Laplante adds. "The killer simply walked into the strip mall bank and shot the poor tellers. In our opinion, the trial court made many errors."
Motion for rehearing
The appellate attorney for Scott has since filed for a motion for rehearing on the 5th DCA opinion.
In the motion, Joel D. Eaton of Miami's Podhurst Orseck PA requested a clarification and/or certification of the opinion. Eaton also wants a rehearing en banc - arguments before the entire 10-member 5th DCA panel.
"I then have 10 days to respond," Biasotti says about the March 15 motion that Eaton filed. "The court has to dispose of that before the judgment is final. Then the mandate is issued to enforce. In this case, that would be a new trial."
And Biasotti is fairly confident the court will enforce the judgment.
"As a practical matter, it would be difficult for me to see the court reverse itself on all three points," he says. "Separately, depending on how the court rules on the plaintiff's motion, they might have the ability to seek further review at the Florida Supreme Court if they can expose an expressed and direct conflict between this decision and a prior decision of another district or the Florida Supreme Court."
If the opinion stands, Biasotti says he thinks the 5th DCA opinion could figure importantly in future cases.
"It has some very interesting legal issues," he says about the Slavin doctrine. "This one though has at least the potential to have a large impact on businesses and, in particular, alarm companies. Because of the court ruling, particularly in the trial court, it refers to the negligent claims and the compatible negligence issue.
"Slavin doesn't normally affect alarm companies, but it has come up in a number of diverse situations," he says. "There is a case about air-conditioning systems in jails. There's a case that involves the slope of a road on a highway. But the legal principle remains the same. It's this whole idea when a contractor does work on real property and the owner of the real property accepts that work with a patent defect, a defense that was obvious to them, then the liability to the contractor is cut off."