CASE LAW UPDATE

BROWARD COUNTY JUDGE DISQUALIFIED FOR BIAS AGAINST PUBLIX’S LACK OF POLICY AGAINST HANDS-FREE USE OF CELL PHONE WHILE DRIVING

Kimberly A. Salmon, Partner –  St. Petersburg Office

In the case of Publix Supermarkets, Inc. and Randolph Sapp v. Monica Olivares, Publix Supermarkets brought a writ of prohibition to disqualify a Broward County trial judge in a wrongful death lawsuit against it.  The driver of a Publix tractor trailer was using a hands-free cell phone at the time of the fatal crash.  The Respondent filed a motion to add a claim for punitive damages relating to the cell phone use.  At the hearing on the motion, Publix claims that the judge’s comments revealed that he was biased against its position.  Publix asserted that there was no justification for punitive damages, even though the company does not have a policy against such use, because hands-free cell phone use while driving is not prohibited by law.  The judge denied Publix’s motion to disqualify.

The Fourth District Court of Appeal found Publix’s motion legally sufficient.  The standard for granting a motion to disqualify is whether or not if the facts alleged “would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.”  Gregory v. State, 118 So. 3d 770, 778 (Fla. 2013).  The Fourth District found that the judge’s comments would create fear in a reasonable person that Publix would not receive a fair trial.  The judge should have disqualified himself.