BOBBY FERGUSON, APPELLANT,
v.
V.S.L. CORPORATION, A FLORIDA CORPORATION, APPELLEE

Fla. 3d DCA | 1988-06-07
No. 87-1542
Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
528 So. 2d 32 Florida District Court of Appeal, Third District (1988) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

A property settlement agreement does not constitute a binding waiver of ERISA plan benefits unless it complies with the plan's specific requirements for changing beneficiaries.


Headnotes

[1] A summary judgment hearing conducted as a continuation of a properly scheduled pretrial conference does not violate due process rights, even if held on the morning of the…

[2] A trial court may entertain a motion for summary judgment sua sponte at a pretrial conference.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

A participant in an ERISA plan named his wife as beneficiary. After divorce, they signed a property settlement agreement. The participant died without…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Bobby Ferguson, a construction worker, brought this action against V.S.L. Corporation for injuries received on the job site during the course of laying cables manufactured and supplied by V.S.L. The parties were advised by a form pretrial order that the cause had been set for trial and that the pretrial conference and call of the calendar would take place on April 2, 1987. As scheduled, the calendar call was held and the trial was set for the following week. On the morning of the trial, the judge requested counsel to advise him of the evidence to be presented. At the conclusion of both counsels’ presentations, summary judgment was entered in favor of V.S.L. Ferguson appeals.

Ferguson contends that he was not given notice of the summary judgment hearing which was conducted prior to trial, in violation of his due process rights. He also contends that summary judgment was improper because the depositions relied upon by the trial court for entering the judgment were not on file as required by Florida Rule of Civil Procedure 1.510. We find neither a due process violation nor a rule violation on the following analysis.

The hearing conducted immediately prior to trial was not an unnoticed summary judgment hearing. It was, as the trial judge stated, a continuation of the pretrial conference previously scheduled for April 2, 1987. The fact that the initial conference was adjourned and continued until the morning of the scheduled trial, some six days later, did not relieve the parties of their obligation to comply with pretrial conference procedure. See Fla.R.Civ.Pro. 1.200(b); Compass Enter., Inc. v. Earls, 397 So. 2d 1039 (Fla. 5th DCA 1981).

The state of readiness required of counsel for the scheduled conference was simply carried over to the continuation of that hearing on the morning of the trial. Because the trial court may entertain a motion for summary judgment sua sponte at a pretrial conference, Bess v. 17545 Collins Avenue, Inc., 98 So. 2d 490 (Fla.1957); Roberts v. Braynon, 90 So. 2d 623 (Fla.1956); Savage-Hawk v. Premier Outdoor Prod., Inc., 474 So. 2d 1242 (Fla. 2d DCA 1985), there was no violation of Ferguson’s due process rights.

Further, we do not find any violation of rule 1.510(c) which requires depositions to be on file. Although the depositions the trial judge employed in reaching his decision were not filed prior to the pretrial conference, they were taken pursuant to notice and were physically in existence “before the court,” satisfying that provision of the summary judgment rule. Compare Fernandez v. Cunningham, 268 So. 2d 166 (Fla. 3d DCA 1972) (refusal to consider deposition testimony obtained one day prior to hearing on motion for summary judgment was abuse of discretion) with Liberman v. Rhyne, 248 So. 2d 242 (Fla. 3d DCA) (depositions taken and filed subsequent to hearing on motion for summary judgment could not be considered on the motion), cert. denied, 252 So. 2d 798 (Fla.1971).

Additionally, the trial court permitted claimant’s counsel to proffer any evidence known by him to exist which would defeat a summary judgment. Because counsel for claimant declined that invitation, we are led to believe that he could not in good faith offer any evidence.

We turn our consideration to the claimant’s contention that the trial court erred in entering summary final judgment because disputed issues of fact remained. Ferguson’s claims are predicated upon theories of negligence and strict liability. As for the strict liability claim, Ferguson alleged that the cable was unfit, defective and unnecessarily dangerous because grease escaped through the plastic sheathing which covered the cable to create the hazardous situation which caused Ferguson’s injuries. “[A] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects proves to have a defect that causes injury to a human being.” West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla.1976).

The movant failed to dispel the allegation that the cable was defective because grease escaped through the cable covering.

Consequently, a disputed question of fact remains on the strict liability claim.

On the other hand, the negligence claim is completely dispelled by the contract between V.S.L. and the contractor under which the cable was furnished. According to the terms of the contract, V.S. L.’s duty was limited to the inspection of the cable prior to shipment. While it may have been V.S.L.’s practice to provide supervision of the initial phase of cable installation, V.S.L. did not have a duty to provide the claimant a safe place to work. Thus, summary judgment on the negligence claim was proper. For the foregoing reasons, the order granting summary final judgment is affirmed as to the negligence claim and reversed as to the strict liability claim and the cause is remanded for further proceedings.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Elliott v. Dugger, 542 So. 2d 392 (Fla. 1st DCA 1989)
    …nsider the deposition filed the day of the hearing since it was taken pursuant to notice and was physically in existence “before the court,” satisfying the provision of rule 1.510(c), Florida Rules of Civil Procedure. Ferguson v. V.S.L. Corporation, 528 So. 2d 32 (Fla. 3d DCA 1988). For the foregoing reasons, the final summary judgment entered in favor of appellee [*395] is hereby REVERSED and the cause is REMANDED for further proceedings. WENTWORTH and THOMPSON, JJ., concur.…
  • S. Atl. Trucking Co. v. Bernuth Agencies, Inc., 584 So. 2d 101 (Fla. 3d DCA 1991)
    …PER CURIAM. Affirmed. See Ferguson v. V.S.L. Corp., 528 So. 2d 32 (Fla. 3d DCA), review denied, 537 So. 2d 568 (Fla.1988).…
  • Fla. Indus. Mach., Inc. v. Executive Life Ins. Co., 560 So. 2d 413 (Fla. 1st DCA 1990)
    …988, both parties extensively quoted facts contained in the depositions in their memorandums of law. They also argued them orally to the trial court, and no objection was made at that time concerning failure to file. In Ferguson v. VSL Corporation, 528 So. 2d 32 (Fla. 3d DCA 1988), review denied, 537 So. 2d 568 (Fla.1988), the Third District reviewed a situation where a circuit court adjourned a pretrial conference and continued it on the morning of the scheduled trial six days later. On the morning of tria…

Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw