Florida Legislature Provides Long-Awaited on Legal Contours of AOB Provisions

Author: Michaela Jester

Guest Editor: Kris Darrough

May 6, 2019 1:03pm

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.

Florida Case Law Update

Author: Haldon Greenburg

Guest Editor: Chandra Roam

May 6, 2019 12:28pm

Florida’s Second District Court of Appeal holds Florida’s statutory accident report privilege does not preclude discovery of statements made by individuals involved in the accident for purposes of completed the crash report.

Reduction of Damages to Present Value in Florida

Author: Doug Baier

Guest Editor: Chandra Roam

May 6, 2019 12:27pm

In personal injury or wrongful death cases, plaintiffs are often awarded a monetary award as compensation for future loss of earnings or medical care. However, determining the value of such award is often a difficult task. In Florida, a standard instruction in a person injury case is 415.14 Reduction of Damages to Present Value.[1] This instruction reads:

Florida Case Law Update

Author: Haldon Greenburg

Guest Editor: Christopher Schon

April 1, 2019 12:47pm

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.

Florida May Soon Bring Tort Damage Awards Back to Earth

Author: David Lewis

Guest Editor: Christopher Schon

April 1, 2019 12:37pm

It happens in almost every negligence case.  A plaintiff’s attorney makes every attempt to increase the potential damage award of the client’s case (and of course, their fee) by beefing up their request to the jury to award sky-high non-economic damages.  In fact, oftentimes a plaintiff will waive their economic damages and seek only noneconomic damages should the plaintiff be particularly sympathetic and the plaintiff’s counsel is banking on high noneconomic damages.

A Look at SB1146/HB911: Proposed Changes to Florida’s Statute on Construction Defects

Author: Doug Baier

Guest Editor: Christopher Schon

April 1, 2019 12:34pm

In Florida, State Statue 558 covers Construction Defects. This statute requires before a party brings any legal action for an alleged construction defect, 60 days prior, the party must deliver to the other party to the contract a written notice, referring Chapter 558, of any construction conditions you allege are defective and provide such person the opportunity to inspect the alleged construction defects and to consider making an offer to repair or pay for the alleged construction defects.

Florida Case Law Update

Author: Danielle Vukovich

Guest Editor: Alla Policastro

March 5, 2019 8:51am

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.

Florida Supreme Court to Decide the Future of Assignment of Benefits Provisions

Author: Michaela Jester

Guest Editor: Alla Policastro

March 4, 2019 9:00am

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

Florida Case Law Update

Author: Haldon Greenburg, Kris Darrough

Guest Editor: Alexander Nguyen

January 7, 2019 9:00am

Highland Stucco and Lime Products, Inc. v. Silverio Onorato et al.

43 Fla. L. Weekly D2579a (Fla. 3d DCA, November 21, 2018).

The defendant Highland Stucco and Lime Products, Inc. (“Highland”) appealed an order denying its motion to dismiss for lack of personal jurisdiction.  On review, the Third District Court of Appeals reversed the order because the plaintiffs, Silverio Onorato (“Onorato”) and Faye Onorato (collectively, “the plaintiffs”) failed to satisfy the “minimum contacts” federal constitutional due process requirement. [1]  The opinion provides an opportunity to review and discuss the procedural requirements that must be met by a plaintiff in Florida seeking to satisfy personal jurisdiction over a defendant.

Florida Proposals for Settlement: Failure to Strictly Comply to Statute Can Be Fatal

Author: David Lewis

Guest Editor: Alexander Nguyen

December 3, 2018 9:00am

Common Scenario

It happens in almost every negligence case.  A plaintiff sues a defendant (or multiple defendants) asserting a claim for damages.  At some point, one or both of the parties will serve a Proposal for Settlement, offering to settle the case at a specific monetary amount in exchange for a release and dismissal of all claims.  Oftentimes, these Proposals are rejected and a verdict is rendered in favor of one of the parties.  In such an event, the court will be asked to evaluate the offering party’s Proposal and ask for an order shifting attorney’s fees.  Is your Proposal for Settlement valid?

Recent Florida Fourth DCA Opinions Highlight Importance of Specific Provisions in Agreements to Arbitration

Author: Haldon Greenburg

Guest Editor: Alexander Nguyen

December 3, 2018 9:00am

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.

Battle of the (Assignment of) Post-Loss Benefits: How the Relationship Between Florida Policy Holders, Mortgagees, and Insurance Carriers is Being Fashioned by Feuding Courts

Author: Michaela Jester

Guest Editor: Tiffany LeMelle

November 7, 2018 10:58am

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).).

Internships and Workers’ Compensation Exclusivity in Florida

Author: David Lewis

Guest Editor: Tiffany LeMelle

November 5, 2018 9:00am

Exclusivity Generally

In Florida, compensation to employees for on-the-job accidents is regulated by a series of statutes, known collectively as the Workers’ Compensation Law (“WCL”).  (Fla. Stat., § 440.01, et seq.)  The WCL provides the sole remedy for an injured employee to recover for the harm caused to him or her by the negligence of others while performing their duties. (Fla. Stat., § 440.11(1); see generally Bakerman v. The Bombay Co., Inc., 961 So.2d 259 (Fla. 2007).).  In exchange for this streamlined guarantee of compensation, employers are provided with immunity from civil suit by the employee, unless one of two exceptions are met:  (1) the employer has failed to secure workers’ compensation coverage for its employees; or (2) the employer causes the employee’s injury through an intentional tort.  (Fla. Stat., § 440.11(1)(a)-(b).).

Florida Supreme Court Rejects Daubert Expert Evidence Standard

Author: Haldon Greenburg

Guest Editor: Tiffany LeMelle

November 5, 2018 9:00am

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.

Florida Supreme Court Elaborates on High Standard of Duty Insurers Owe to Insureds & Factors to Consider in Cases of Bad Faith

Author: Haldon Greenburg

Guest Editor: Tiffany Rouhi

October 1, 2018 10:00am

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.

Recoverable Damages for Wrongful Death Claims in Florida

Author: David Lewis

Guest Editor: Tiffany Rouhi

October 1, 2018 10:00am

In Florida, a civil lawsuit may be brought as a result of the death of an individual caused by the willful or negligent conduct of another.  Wrongful death actions differ from your typical negligence action with regard to standing requirements and recoverable damages.  This article discusses the elements of a wrongful death cause of action, and the damages available to the plaintiff.

State Your Choice Clearly: Florida Auto Insurance Polices And Underinsured Motorist Coverage

Author: Jenny Silverstein

Guest Editor: Catie R. Johnson

October 1, 2018 10:00am

Prior to working at Tyson & Mendes, I worked as part of an in-house counsel team for a large auto insurance company in California. While I was able to relish in every attorney’s dream of not having to worry about billable hours, the relationship I had with the insurance company’s policyholder was a little different. I had to take into consideration why certain cases were settled for financial reasons instead of advocating for the policyholder’s desires to take a case to trial out of “principle.” My representation became not only about providing the best legal representation I could for the policyholder and my employer, but also to keep in mind what the “bottom line” was.

Florida Case Law Update

Author: Damian M. Fletcher

Guest Editor: Leslie Price

September 5, 2018 9:00am

Failure to File a Privilege Log did not Waive the Work Product or Attorney-client Privilege Where the Assertion of Privilege was “Category Specific” and the Category Plainly Protected by the Privilege.

When an Accident is Unavoidable, is the Driver Still Liable in Florida?

Author: Doug Baier

Guest Editor: Tiffany Rouhi

September 5, 2018 9:00am

When a driver is confronted with a sudden emergency, he is not held to the same standard of care, which would otherwise be expected. However, neither is he excused from not acting in a reasonable and prudent manner.[1] This is considered the Sudden Emergency Doctrine. Under this doctrine, once the emergency arises, a driver “is not negligent, provided he has used due care to avoid meeting such an emergency and, after it arises, he exercises such case as a reasonably prudent and capable driver would use under the unusual circumstances.” [2]

Florida Case Law Update

Author: Haldon Greenburg

Guest Editor: Jessica Heppenstall

August 6, 2018 9:00am

A Comparison of Recent Opinions Related to Dismissal for Fraud on the Court

An allegation of fraud on the court is a serious accusation, and, if established, can result in sanctions up to, and including, the dismissal of a plaintiff’s claim.

Better Call Saul: Attorney Misconduct and Penalties in Florida

Author: Jenny Silverstein

Guest Editor: Jessica Heppenstall

August 6, 2018 9:00am

Heard any good jokes lately? Or better yet, heard any stories about “honest” lawyers? The perception of lawyers in this country is they are dishonest, crooked and will do anything to make a quick buck. And, then there are movies and TV shows which lionize attorneys and make them look like modern day heroes (see “Law & Order” DA Jack McCoy and John Travolta in “A Civil Action”). The truth is lawyers are human like everyone else and do the best they can each day to uphold the vow they took when they became a member of their state’s bar association. However, humans do make mistakes and that includes lawyers.

National Deaf Academy, LLC v. Townes: Medical Malpractice Claims Made Murkier

Author: Allison Lawrence

Guest Editor: Sarena Kustic

July 9, 2018 9:00am

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.

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