4D04-2262-Yates v. Publix Super Markets

State: Florida

Court: Florida Fourth District Court

Docket No: 4D04-2262

Case Date: 12/14/2005

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT July Term 2005 SUSAN YATES, Appellant, v. PUBLIX SUPER MARKETS, Appellee. No. 4D04-2262 [December 14, 2005] FARMER, J. Plaintiff's decedent was fatally injured on the job because of a defect in a machine made by Serco Company and owned and operated by his employer, Publix Super Markets. She sued Serco and ultimately settled the claim for less than all the damages she had claimed. She then brought suit against Publix for failing to cooperate with her in the litigation against Serco, and for failing to safeguard evidence crucial to the claim, the effect of which caused her to settle without full compensation. Publix in turn moved to dismiss her claim on the theory that the claim was barred by the statute of limitations. Publix also argued that the statutory basis relied on by plaintiff was limited to a claim for spoliation of evidence, which was barred. The trial judge agreed and granted the motion. We reverse. In count I plaintiff alleged a statutory basis for suit against her husband's employer under section 440.39(7), which provides: "The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose."

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