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Today’s guest post is from Wendy Lumish and Daniel Rock of Bowman & Brooke.  We sought them out because they wrote  a successful amicus curiae brief in the case they discuss.  That case is a major win for all Florida defendants, bringing Florida summary judgment practice into the Twenty-First Century.  As always our guest posters are 100% responsible for what they write, deserving all the credit (and any blame).


This guest post is pleased to report on a change in Florida law that replaces a nearly insurmountable fifty-year-old summary judgment standard.

Based on a 1966 decision from the Florida Supreme Court, a party moving for summary judgment in Florida for decades had the burden of “conclusively” disproving the non-moving party’s theory of the case.  See Holl v. Talcott, 191 So. 2d 40, 45-47 (Fla. 1966).  Under this standard, even speculative evidence was sufficient to defeat motions for summary judgment.

To illustrate how bad it could be, here is one example from the product liability context.  In Clark v. Gochenaur, 623 So. 2d 561 (Fla. 1st DCA 1993), a worker sued a truss (support beam) manufacturer after he fell from a roof truss that allegedly broke.  The defendant examined what it believed to be the subject truss and provided evidence that it was not defective − it had not broken.

The plaintiff did not file a response.  But instead argued there was conflicting evidence as to whether the truss the defense examined was the one from which the plaintiff fell.  The manufacturer replied that if the truss examined by the defense was the wrong one, then the plaintiff had no evidence that any truss broke and caused his injuries.

The Clark court found that since the defendant did not conclusively prove the identity of the truss from which the plaintiff fell, summary judgment was improper.  Thus, even without any evidence of defect or that the defect caused his injuries, the plaintiff was permitted to get to a jury based on speculation that, although the only truss that was identified was not defective, there still might have been a defect.

Thankfully, Clark and other similar cases will very likely soon be relics from a past dark era of Florida law.

On December 31, 2020, the Florida Supreme Court issued a rule change that will bring Florida in line with the majority of jurisdictions across the country. The amended rule includes the following language:

The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In re Amendments to Fla. Rule of Civil Procedure 1.510., No. SC20-1490, 2020 WL 7778179, at *4 (Fla. Dec. 31, 2020).  This rule change has been issued in tandem with  Wilsonart, LLC, v. Miguel Lopez, No. SC19-1336, 2020 WL 7778226 (Fla. Dec. 31, 2020).

In its opinion amending the rule, the court noted that the rules of civil procedure are meant “to secure the just, speedy, and inexpensive determination of every action.”  In re Amendments, 2020 WL 7778179, at *2.  When it came down to picking which rule better achieves this purpose, the court’s choice was clear:  “[T]he federal summary judgment standard is more rational, more fair, and more consistent with the structure and purpose of our rules of civil procedure.”  Id.   The rule will take effect on May 1, 2021, after a time period for public comment.

This rule change will impact nearly every civil case in Florida.  Although there are countless ways the new rule might play out in the courts, the court highlighted three “particularly consequential differences” that are worth keeping in mind.

First, there are compelling similarities between a motion for a directed verdict and a motion for summary judgment, which has led federal courts to state that the inquiry under each is the same—whether the evidence presents a sufficient disagreement to require submission of the issue to the jury.  Florida courts, on the other hand, have repeatedly declined to recognize this similarity.  Instead, they accepted the fact that a case may survive summary judgment only to be disposed of at the directed verdict stage—after the parties have already gone through the expense of trial.  This inconsistency surely encouraged defendants to settle cases they should have won before trial.

Second, in federal court, the moving party meets its initial burden if it shows the district court that there is an absence of evidence to support the nonmoving party’s case.   Again, under Florida law, a moving party under the prior standard would have had to “conclusively” disprove the nonmovant’s theory of the case.

Third, under federal law, the nonmoving party must do more than show some metaphysical doubt as to the material facts in order to survive summary judgment.  However, a nonmovant could survive summary judgment under Florida law with any evidence—even “trivial” and “incredible” evidence.

By bringing Florida in line with the federal rule, we expect that the state’s courts will more seriously consider motions for summary judgment, which can only be a good thing for defendants.