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Case Law Alerts

Clearly Established Constitutional Right: A Fact-Specific, Published Finding Is Necessary to Clearly Establish a “Private Act of Violence”

Linden v. City of Southfield, Michigan, No. 22-1681, Jul. 26, 2023

October 1, 2023

by Jillian L. Dinehart

Emergency medical personnel were granted qualified immunity after pronouncing a person dead, despite her still demonstrating respiratory movement and electrical activity, leading to her transport to a funeral home in a body bag. The Sixth Circuit recently held that it is not a clearly established constitutional violation because there was no precedent to find that transport in a body bag is the equivalent of a private act of violence. 

The decedent in this matter had called 911 for medical aid. When the first responders arrived, they provided medical care but then called a doctor to describe the patient’s signs of life. They received permission to stop resuscitative efforts, even though they had stopped efforts five minutes earlier. The first responders declared the patient dead. 

Family members, police, and even a funeral home employee all questioned the first responders conclusion because the patient was visibly breathing and electrical activity was shown on the first responders’ monitors. The first responders insisted that the respiratory action and the electrical activity were the result of the medication given as part of the resuscitative effort, but that the patient was dead. 

The funeral home employee bagged the body and took it to the funeral home. When the body bag was opened and the body was being prepped for embalming services, the funeral home employee saw that the decedent’s eyes were open and she was breathing. The employee immediately called 911, and a different set of responders transported her to the hospital, where it was discovered the patient had suffered an anoxic brain injury and was in a vegetative state. The patient died one week later. 

The decedent’s estate brought a claim for a constitutional violation of the decedent’s 14th Amendment rights, alleging that the first responders were deliberately indifferent to her medical needs, or that she was subjected to a state-created danger. The district court dismissed the action, and the “state-created danger” claim was appealed. 

The standard for a state-created danger is that the affirmative act of the government agents must create or increase the risk that the decedent would be exposed to “private acts of violence.” The circuit court held that the alleged private act of violence—being transported in a body bag to a funeral home—was not a sufficiently clear violation of constitutional rights such that the first responders could have known that they were in violation. The court compared this to cases where police question an abused child in front of the alleged abusers or disclosing the identity of an undercover officer to the criminal suspects, therefore increasing the likelihood of foreseeable violence against the child or the undercover officer. 

The plaintiff attempted to draw a correlation to cases involving less-obviously criminal consequences. In one of the comparative cases, a state actor prevented a private dive team from rescuing a drowning person and told the private team to wait for the governmental dive team to arrive. However, by the time the government’s team arrived, the drowning victim had died. In that unpublished case, the court held that a “policy of arbitrarily cutting off private source of rescue without providing a meaningful alternative could support a substantive due process claim.” The plaintiff’s argument was that the first responders deprived the decedent of additional medical attention by pronouncing her dead. However, the court found that the first responders were entitled to qualified immunity because the cases cited by plaintiff were unpublished and could not form the basis of a clearly established constitutional right were distinguishable in that the first responders did not actively prevent others from treating the decedent. Ultimately the Sixth Circuit Court held that it was: 

…hard to see how it could be ‘clearly established’ that the first responders exposed (the decedent) to a private act of violence when they mistakenly believed she was dead and left her in her family’s care to be processed for routine funeral proceedings, which included the Funeral Home employee’s act of putting (the) presumed-dead body in a body bag to transport her to a funeral home.”

The dismissal of the case was affirmed, and this opinion was recommended for publication.
 

 

Case Law Alerts, 4th Quarter, October 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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