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Friday, January 8, 2021

As Published in the Daily Business Review: Fla. Supreme Court’s New Year’s Resolution to Adopt the Federal Summary Judgment Standard

By: Walter G. Latimer and Guy Kamealoha Noa

As Published in the Daily Business Review | January 8, 2021

On Dec. 31, 2020, the Florida Supreme Court altered the litigation landscape in Florida when it amended the summary judgment standard to align with that “of the federal courts and of the supermajority of states” in the nation. The court amended Florida Rule of Civil Procedure 1.510 to adopt the summary judgment standard first articulated by the U.S. Supreme Court in Celotex v. Catrett, 477 U.S. 317 (1986). The amended rule goes into effect on May 1, 2021.

The court amended Rule 1.510 on its own motion, but the impetus was Wilsonart v. Lopez, 2019 WL 5188546 (Fla. Oct. 15, 2019). Wilsonart concerned a deadly trucking accident where video footage from the truck’s dash camera clearly showed that the truck driver was not negligent. The trial court granted summary judgment based on the video evidence, but the Fifth District Court of Appeal reversed it. The appellate court read the existing rule to require denial of summary judgment “if the record raises the slightest doubt that material issues could be present.” It certified the case to the Florida Supreme Court as one of great importance.

The Florida Supreme Court agreed to address whether Florida should adopt the federal summary judgment standard. Recognizing the significance of a rule change, numerous interest groups responded with amicus briefs. The court affirmed the lower court’s decision, wished to adopt the federal summary judgment standard the “right way”—a rule amendment. The court contemporaneously issued a separate opinion announcing the rule change.

The rule change is incredibly significant. Obtaining summary judgment under the current standard is notoriously difficult, requiring the moving party to conclusively demonstrate the non-existence of any genuine issue of material fact. The standard requires the moving party to disprove the non-movant’s case to eliminate any issue of fact. “[I]f the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” “[T]he existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the ‘slightest doubt’ is raised.” Critics argued this high standard eliminated most chances of obtaining summary judgment and undermined the purpose of Rule 1.510: the elimination of claims where there is no genuine issue of material fact.

The moving party will no longer be required to disprove the opposing party’s theory. Instead, a movant need only prove the absence of evidence in support of the non-movant’s claim, who must then set forth specific facts showing there is a genuine issue for trial. Where it “fails to make a showing sufficient to establish the existence of an element essential to that party’s case,” summary judgment is appropriate. Parties opposing summary judgment will not be able to rely on their initial pleadings, the “possibility” of the existence of a material fact, or mere speculation. Instead, the evidence must be such that a reasonable jury could return a verdict for the non-moving party. Evidence that is not significantly probative will not save a party from summary judgment.

To be clear, the new standard will not eliminate meritorious claims or defenses, nor will it shut the courthouse doors on valid claims. Instead, it aligns Florida’s standard with that of the federal courts and the great majority of states, bringing predictability and a workable framework for summary judgments. It will prevent forum shopping by those who would pursue unsupportable claims in Florida state courts, resulting in pressure on defendants to settle claims in excess of their true values. The new standard will also improve judicial efficiency by removing cases whose claims or defenses will fail at trial, relieve parties from the expense of meritless litigation, and “save the work of juries for cases where there are real factual disputes that need resolution.”

This change follows a trend in Florida jurisprudence toward eliminating the procedural differences between litigating cases in state or federal court. When faced with a choice of forum, two of the main factors parties often considered were the availability of Daubert challenges to expert evidence and the likelihood of summary judgment. In 2019, the Florida Supreme Court reinstated the Daubert standard, as reflected in Florida Rule of Evidence 90.702. The reinstatement of the Daubert standard provided litigants a means to challenge claims that were not supported by reliable scientific evidence. Similarly, the change to the summary judgment standard provides litigants a means to challenge claims that are not supported by credible factual evidence. With the elimination of two of the key differences between federal courts and state courts, the choice of court is now obvious, as Florida enters the modern era.


Walter G. Latimer is a shareholder in the products liability and toxic tort group at Fowler White Burnett where he focuses his practice on complex high-exposure transportation, toxic tort, product liability, premises liability, professional liability, general liability, resort and maritime torts, and other risks, from pre-trial through appeal. He can be reached at

Guy Kamealoha Noa is an associate in the products liability and toxic tort group at the firm where he focuses in the areas of trucking accident defense and catastrophic and personal injury claims. He can be reached at


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