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Florida Case Law Update

Author: Haldon Greenburg

Guest Editor: Danielle Vukovich

September 3, 2019 10:00am

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)

Plaintiff Discovery Tactics in Florida: Is There Any Limit?

Author: Doug Baier

Guest Editor: Chandra Roam

August 7, 2019 10:00am

In Orthopedic Center of South Florida v. Sode So.3d (Fla. 4th DCA 2019), a bicyclist sued to recover for injuries sustained in a bicycle accident. As part of the suit, plaintiff served a subpoena duces tecum on a non-party corporate entity with which the physician, who performed a compulsory medical exam, was affiliated. The non-party healthcare provider filed objections to the subpoena duces tecum as plaintiff sought…

Florida Case Law Update

Author: Haldon Greenburg

Guest Editor: Chandra Roam

August 7, 2019 10:00am

Pier 1 Cruise Experts v. Revelex Corporation, No. 17-13956 (11th Circuit. 2019)
Miguel Lopez v. WilsonArt, LLC et al, 44 Fla. L Weekly D1808a, Fla. 5th DCA, July 12, 2019

Meet the New Law. Same as the Old Law. Florida Reverts Back to the Daubert Standard for Expert Evidence

Author: Haldon Greenburg

Guest Editor: Robert Bernstein

July 1, 2019 10:00am

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.,[1] 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…

When the Jury Believes Your Injury is Permanent, but Gives You Nothing for It

Author: Terra Davenport

Guest Editor: Robert Bernstein

July 1, 2019 10:00am

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…

Florida Med. Malpractice Settlements and the Three Strikes Rule: How Action by Insurance Carriers Could Benefit the Bottom Line and Patients

Author: Michaela Jester

Guest Editor: Salayha K. Ghoury

June 4, 2019 8:26am

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.

Florida Case Law Update

Author: Emily Berman

Guest Editor: Jeremy Freedman

June 3, 2019 10:00am

Chapman et al. v. ACE American Insurance Company[1]

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.

Shifting Risk of Injury and Liability: How I Learned to Love the Exculpatory Clause

Author: Haldon Greenburg

Guest Editor: Jeremy Freedman

June 3, 2019 10:00am

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.

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

Author: Michaela Jester

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.

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

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

Author: Haldon Greenburg

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

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).).

Florida Supreme Court Rejects Daubert Expert Evidence Standard

Author: Haldon Greenburg

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

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.

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

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.

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

Author: Allison Lawrence

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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