FLORIDA — Appellant/defendant Bechtel appealed the trial court’s final judgment after a Florida jury found that plaintiff Richard Batchelor’s mesothelioma was caused in part by exposure to asbestos at Florida Power and Light (FPL) during the years 1974 to 1980. Bechtel built the plant at issue, and was responsible for ongoing maintenance services throughout the plaintiff’s six years at FPL, providing over a million contracted man hours during that time period, and having trailers on site for office space and storage. A three judge panel heard Bechtel’s appeal, and addressed two issues in its decision to grant.
First, Bechtel challenged the trial court’s discretion in instructing the jury that Bechtel’s alleged failure to search for evidence permitted an adverse inference. The court stated that “(t)he normal rule is that ‘[a] sanction remedy for failure to allow discovery is legally unavailable to a party until the opposing party is first subject to and violates an order to provide such discovery.” The appellate panel noted that there was no order compelling Bechtel to attempt to contact its former employees from 30 years ago to support its presentation of a corporate representative. Thus, no order had been violated and the trial court erred in imposing an adverse jury instruction.
Second, Bechtel challenged the trial court’s ruling on its motion for a directed verdict, arguing that the plaintiff had not presented sufficient evidence to satisfy the “control” element of a premises liability claim, its only theory of liability against Bechtel. The court analyzed submissions and concluded that there was no evidence that Bechtel took possession of all or any part of FPL, and that “the {jury’s} conclusion that Bechtel exercised control and possession is no more than conjecture, speculation, and surmise.” In finding so, they noted that Bechtel’s presence at FPL as a “large contractor” does not support an inference that FPL surrendered possession to Bechtel. They further noted that the contracts at issue were silent regarding transfer of possession and control of the premises, and that FPL still had to carry Premises Operations insurance. Because the record failed to include evidence sufficient to make a finding that Bechtel controlled the premises, the panel ruled two to one to reverse and enter judgment for Bechtel.