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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