Insurance coverage disputes were probably the last thing on bar owners’ or patrons’ minds at RumFest 2017. Patrons were bouncing a beach ball around the crowd, until the beach ball bounced toward one particular plaintiff, who pushed it away with his outstretched arms and suffered severe ligament and tendon injuries, so his complaint alleges. When the patron sued the bar owner, the bar owner turned the matter over…
On October 15, 2019, the Florida 5th District Court of Appeals (“DCA”) certified a question for the state’s Supreme Court that it viewed as one of great public importance: Should the court grant summary judgment when the moving party’s video evidence completely refutes conflicting evidence presented by the non-moving party? The court recognized that technological advancements are increasing the likelihood that insurance companies…
Two Recent Florida Fifth DCA Opinions Highlight Questions of Improper Statements at Closing Argument, and one Florida’s First DCA Opinion Interprets the Statute of Repose
Aldonia Mootry, as Personal Representative of the Estate of Russell Mootry, Jr. v. Bethune-Cookman University, Inc. et al.,44 Fla. L. Weekly D1999a (Fla. 5th DCA 2019)
R and W Rental Properties, LLC v. Warry Warnick, 44 Fla. L. Weekly D2044a (Fla. 5th DCA 2019)
James Harrell v. The Ryland Group, 44 Fla. L. Weekly D2054b (Fla. 1st DCA 2019)
It seems like only yesterday (October 2018 to be exact), that litigation attorneys in Florida were buzzing about the Florida Supreme Court’s 4-3 decision in DeLisle v. Crane Co., which seemed to resolve the question of how courts in the state would analyze the admissibility of expert testimony and evidence. In the DeLisle opinion the…
Why does Tyson & Mendes emphasize the importance of aggressively arguing damages as part of its defense strategy? The answer is illustrated in Arias v. Porter, 44 Fla. L. Weekly D1373 (Fla. 2nd DCA May 29, 2019). In Arias v. Porter, 44 Fla. L. Weekly D1373 (Fla. 2nd DCA May 29, 2019), a Florida appeals court concluded a jury verdict awarding an automobile accident victim…
The Three Strikes Rules
In 2004, Florida voters passed “The Three Strikes Rule” as an effort to curb repetitive medical malpractice by an individual physician. The Rule allowed the Board of Medicine to revoke a physician’s license after three verdicts against the physician pursuant to medical malpractice claims. However, many believe the law has not served its purpose. Most claims settle and thereby avoid any rendering of a jury verdict. In some instances, despite having settlements in the double-digits, many of these physicians continue to treat patients in Florida. Balancing the protection of qualified physicians who work in high-risk specialties and are, by the nature of their practice, subjected to malpractice claims with legal reform to protect patients is complicated. Insurers providing malpractice coverage in Florida may assume a large responsibility, and benefit, in assessing the standards of accountability on the part of the insured physicians, the carriers, and even the Medical Board.
Chapman et al. v. ACE American Insurance Company
In this recent decision from the 11th Circuit, the Court ruled that ACE American Insurance Co. had no duty to defend or indemnify a man who pretended to be a licensed mental health counselor in a wrongful death suit. The insurance policy covers only legitimate professional services.
Even in situations where a duty may be owed, valid exculpatory clauses in agreements between parties can operate to shift the risk of injury and liability from one contracting party to another. Yes that is correct, under certain circumstances in situations where a defendant’s negligence may have resulted in a plaintiff’s injury, the right language in a contract between the parties can be utilized to avoid liability and obtain a favorable ruling from a judge. This article will discuss what an exculpatory clause is, the standards by which they are judged, and how courts in Florida interpret those clauses when making decisions regarding liability.
Law makers in the Sunshine State have long been entrenched in mediating the dispute over “Assignment of Benefits” (“AOB”) provisions in homeowners insurance policies. Multi-faceted with even more perspectives to consider, an epidemic of AOB litigation plagued without resolution for too long. Finally, Florida Legislature passed a bill which offers some closure and direction on the legality of AOB provisions. Florida Governor Ron DeSantis intends to sign the legislation into law which will go into effect July 1, 2019.
Two Relevant Opinions Regarding the Discovery of Information Related to Non-Party Confidential Information, and an Opinion Noting the Importance of Including All Elements on a Jury Verdict Form
Fourth DCA holds treating physicians internal cost structure information constitutes a confidential trade secret, but defendants could still obtain same in discovery if the parties could negotiate a confidentiality agreement as to the information.
Lake Worth Surgical Center, Inc. v. Crereser Gates et al, 44 Fla. L. Weekly D572a, Fla 4th DCA, February 27, 2019
Plaintiff sued defendants for damages resulting from a car accident between plaintiff and defendant. Plaintiff was treated at a surgical center operated by Lake Worth Surgical Center (“the Surgical Center”), and plaintiff was billed for services related to an arthroscopic knee surgery and supplies.
The District Court of Appeal of Florida, Third District, recently issued several rulings relevant to insurance carriers, particularly those providing coverage for property loss. In Zurich American Insurance Company v. Puccini, LLC, the court addressed whether an insurer may maintain a subrogation action against a tenant not named in its insurance policy with the landlord of the property at issue. Then in People’s Trust Insurance Company v. Garcia, the court addressed the appropriateness of compelling appraisal based on causations being a question of coverage, and therefore, for the court or one of amount of loss, and instead, for the appraisers. Similarly, in Safepoint Insurance Company v. Gomez, the court addressed whether the court properly compelled the parties to continue appraisal when the insurer terminated the appraisal process after the insurer had already invoked appraisal pursuant to the terms of the insurance policy and the appraisal process had already commenced.
The Florida Supreme Court is soon to narrate the next chapter in the saga of the validity of “Assignment of Benefits” insurance policy provisions in the state. In September 2018, an insurer secured trial court and intermediate appeals court rulings backing its position that an assignment of benefits by a homeowner, to a water-damage repair contractor, was invalid because the assignment did not comply with the language of the policy. The insurer argued, and the courts agreed, it was not required to pay the contractor because the assignment lacked required pre-approval from both policyholders and the mortgagee. In late 2018, the Florida Supreme Court agreed to review the holding.1
Arbitration is a form of alternative dispute resolution in which the parties agree to resolve their case outside of a traditional courtroom by going before an arbitrator who will hear the dispute and issue a binding decision. In most cases arbitration is quicker and less financially costly than litigation, and the proceedings can be kept private. More and more, businesses are choosing to include arbitration agreements within their contracts in order to take advantage of the many benefits.
September 2018 ushered in a conflicting validity interpretation of “anti-assignment of benefits” provisions in homeowners’ insurance policies between Florida’s Fourth and Fifth District Courts of Appeals. In 2017, Florida’s Fifth District held that clauses prohibiting the assignment of benefits post-lost without the consent of all insureds and the mortgagee are invalid on the grounds of public policy. (Security First Insurance Co. v. Florida Office or Insurance Regulation, 232 So. 3d 1157 (Fla. 5th DCA 2017).). In September 2018, however, the Fourth District disagreed with its sister court by holding that such consent requirements are, in fact, enforceable based on parties’ freedom to contract with one another, and the legislature is the more appropriate venue for determining issues of public policy. (Restoration 1 of Port St. Luce v. Ark Royal Insurance Company, No. 4D17-1113 (Fla. 4th DCA 2018).).
In a 4-3 decision, the Florida Supreme Court settled the ongoing uncertainty regarding the Frye vs. Daubert expert evidence standard. The Court determined a 2013 legislative revision to the Florida Evidence Code was unconstitutional and infringed on the Court’s rule-making authority. The result is a clear statement of the so-called Frye standard as the governing analysis for admissibility.
Suzanne Harvey v. GEICO General Insurance Company, 43 Fla. L. Weekly S375a
The critical inquiry in a bad faith claim is whether the insurer diligently, and with the same haste and precision as if it were in the insured’s shoes, worked on the insured’s behalf to avoid an excess judgment. In a 4-3 decision, Florida’s Supreme Court reversed an Appellate Court’s “misapplication” of Florida’s bad faith precedent, concluding the court below erred in holding the evidence was insufficient to show the insurer acted in bad faith in failing to settle the insured’s claim.
Florida courts have grappled with the issue of whether or not claims for quasi-medical injuries occurring in a hospital, medical clinic, or physician’s office, automatically fall under the regulations of Florida’s medical malpractice statutes, or should be brought as ordinary negligence claims. Likewise, plaintiffs claiming damages resulting from these quasi-medical injuries were torn between filing claims under the purview of medical malpractice statutes, or simply filing claims asserting ordinary negligence. Does the classification make any difference? The short answer is, yes.
Melitina Valiente v. R.J. Behar & Company, Inc. et al.
Third District Court of Appeal, Florida
Opinion filed June 6, 2018
43 Fla. L. Weekly D1277c
In a split opinion, the Third District Court of Appeal affirmed the trial court’s order granting summary judgment for defendants based on the Slavin doctrine.
The Slavin doctrine originated in 1995, from the Florida Supreme Court’s opinion in Slavin v. Kay. Despite its age, Slavin continues to be a staple in certain negligence actions because it provides contractors, architects and engineers, a reasonable defense to liability. The Slavin doctrine relieves a contractor of liability for injuries to third parties when the contractor’s work is complete, the owner of the property accepts the work, and the defect that allegedly caused the injury is patent. The Slavin doctrine presumes the owner made a “reasonably careful inspection” of the contractor’s work, prior to accepting it as complete, and thereby “accepts the defect and the negligence that caused the defect as his own.”