Costs: Reversal Of Costs Awarded To Defendants Necessitated By Reversal Of Trial Court’s Granting Of Defendants’ Summary Adjudication Motion On Negligent Misrepresentation Claim

Plaintiff Adequately Alleged Negligent Misrepresentation, Submitted Evidence Demonstrating A Triable Issue Of Fact, And Defendants Did Not Establish That Plaintiff Could Not Prove The Elements Of Negligent Misrepresentation.

            For a nice discussion re the elements of intentional and negligent misrepresentation, we commend our readers read Borman v. Brown, Case Nos. D076239/D076748 (4^th Dist., Div. 1 January 15, 2021) (published). 

            In Borman, plaintiff sought treatment for a droopy eyelid and brow from eye center physician defendant who advised that a brow lift procedure would correct the issue, but would not be covered by plaintiff’s insurance, and that an eye lift could alternatively be performed and covered by plaintiff’s insurance.  Plaintiff could not afford a procedure not covered by insurance and agreed to have defendant perform the eye lift to resolve her issues.  Afterward, she continued to have difficulties with her eyelid and brow, so she consulted with another physician who informed her that the brow lift, not eye lift, was the procedure that should have been performed for her situation.  Additionally, plaintiff learned the brow lift would have been covered by her insurance had defendant done the appropriate documentation of the need for the procedure and submitted it to the insurance company for approval.

            Plaintiff sued defendant physician and the eye center – alleging causes of action for professional negligence, lack of informed consent, fraud and deceit, and medical battery.  The trial court granted defendants’ summary adjudication as to the fraud and deceit and battery causes of action.  The remaining causes of action went to trial – with the jury returning verdict in defendants’ favor – and the trial court also entered a postjudgment order awarding costs to defendants.  

            The 4/1 DCA reversed and remanded for further proceedings on plaintiff’s fraud and deceit cause of action insofar as it pled a claim for negligent misrepresentation.  In a 3-0 opinion, authored by Justice Aaron, the panel found the trial court erred in granting summary adjudication.  Plaintiff had adequately alleged the tort of deceit based on negligent misrepresentation, had submitted evidence to the trial court demonstrating a triable issue of fact with respect to the intent to induce reliance element, and defendants had not established that plaintiff could not prove the elements of negligent misrepresentation.  Reversal and remand for the negligent misrep claim necessitated reversal of the costs award order issued in defendants’ favor.