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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 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 Case Law Update

Author: Haldon Greenburg

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.

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.

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.

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.

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.

Florida Case Law Update

Author: Haldon Greenburg

July 9, 2018 9:00am

Melitina Valiente v. R.J. Behar & Company, Inc. et al.[1]

Third District Court of Appeal, Florida

Opinion filed June 6, 2018[2]

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.

Background

The Slavin doctrine originated in 1995, from the Florida Supreme Court’s opinion in Slavin v. Kay.[3] 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.[4]  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.”[5]

Florida Case Law Update

Author: Haldon Greenburg

Guest Editor: Raymond K. Wilson Jr.

April 27, 2018 2:59pm

Publix Supermarkets, Inc. v. Jessie Bellaiche

43 Fla. L. Weekly D673a, March 28, 2018

The Third District Court of Appeal reversed plaintiff’s $1.5 million slip-and-fall verdict, holding that a jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability.

The Building Blocks to an Effective Opening Statement in Florida

Author: Kathryn Lee Colgan

Guest Editor: Raymond K. Wilson Jr.

April 27, 2018 2:41pm

Other than voir dire, your opening statement will be your chance to have each juror’s undivided attention. This is your first opportunity to make a solid impression on the jury, to lay the framework for the theme of your case, and to explain the facts of the case in an understandable way. In order to put together a compelling opening statement an attorney must do several things.

Florida Case Law Update

Author: Haldon Greenburg

April 4, 2018 9:19am

Remittitur of Excessive Future Damages

WAL-MART Stores, Inc. v. Derrick Thornton (43 Fla. L Weekly D521a)

A Broward County Plaintiff sued for damages resulting from a slip-and-fall accident.  At trial, a verdict in favor of the Plaintiff was rendered and damages were awarded for injuries sustained, including $150,000 for future medical costs.  Following the trial, Wal-Mart filed a Motion for Remittitur, arguing the damages awarded was excessive in light of the facts presented, which the trial court denied.

Developing Your Motions in Limine for the Florida Courtroom

Author: Kathryn Lee Colgan

April 4, 2018 9:11am

Motion in Limine translates to motion “at the threshold.” When properly used, Motions in Limine have the ability to drastically limit and focus the jury on key issues, diminish the length of trial, and lead to favorable settlements or verdicts. Motions in Limine can also help eliminate the need to lodge repetitive objections during trials, as not even the most experienced trial lawyer can predict a specific jury’s perception of persistent objections coming from the defense table.

Florida Case Law Update

Author: Damian M. Fletcher

Guest Editor: Jeremy Freedman

March 5, 2018 1:57pm

OSWALD WOUDHUIZEN AND POWER DESIGN, INC. AND DISCOVER PROPERTY AND CASUALTY INSURANCE COMPANY, Appellants, v. MARY L. SMITH, Appellee

Florida’s Collateral Source rule, Sec. 768.76, does not require a party to present evidence that the period covered by disability payments is the same as the period covered by the jury’s award of past lost wages.

A Seminole County plaintiff filed suit for injuries sustained in a motor vehicle accident where she was rear-ended.  The plaintiff claimed neck, shoulder, low back and knee pain, as well as depression resulting from her injuries. In addition to her medical bills, the plaintiff claimed lost wages and loss of future earning capacity. Defendants stipulated to liability but contested causation and damages. A jury returned a verdict as follows: Past medical expenses $50,000; Future medical expenses $25,000; Past lost earnings $50,000; Future lost earnings $0.

The Rebuttable Presumption of Negligence in Rear-End Motor Vehicle Collisions in Florida

Author: Haldon Greenburg

Guest Editor: Jeremy Freedman

March 5, 2018 1:50pm

Florida law provides a rebuttable presumption of negligence that attaches to the rear driver in a rear-end motor vehicle collision case.[1] This presumption can be a valuable tool in the litigation and/or resolution of motor vehicle accident claims involving rear-end collisions, however it is not absolute. The presumption of negligence on part of the defendant driver who rear-ends the plaintiff driver is not a substantive rule of law that supersedes Florida’s comparative negligence system of tort recovery. Rather, it is an evidentiary tool imposed by decisional law to facilitate a particular type of negligence case. Applicable where the evidence is insufficient to create a jury question on the relevant issues of fault.[2]

South Florida Judge Grants New Trial to Trucking Company Based on Alleged Improper Exclusion of Intoxication Evidence

Author: Haldon Greenburg

February 5, 2018 3:01pm

Recently, a South Florida judge granted a trucking company’s motion for a new trial based on the exclusion of evidence regarding plaintiff’s intoxication [1] This ruling highlights the relevance of Florida’s intoxication defense in civil action tort claims.

The suit was brought by plaintiff against the owner of a tractor-trailer and the driver of the tractor-trailer, arising out of an early morning accident in which the driver of the tractor-trailer improperly turned into plaintiff’s lane, thereby colliding with plaintiff’s motor vehicle.[2]  Defendants admitted the driver of the tractor-trailer was negligent, and his actions contributed to causing some of plaintiff’s damages, but also contended that plaintiff was negligent, resulting in or contributing to his own damages.[3]

Can Private Insurers Save the National Flood Insurance Program?

Author: Nathan Berkeley

January 12, 2018 4:12pm

In the wake of a longstanding split between Florida’s Second District Court of Appeal and Third District Court of Appeal in how to assess insurance coverage, the Florida Supreme Court’s decision in Sebo v. American Home Assurance Co., 208 So.3d 692 (Fla. 2016), will likely have a substantial and enduring impact on insurance coverage in Florida. The decision to seemingly adopts the “concurrent cause doctrine” as the standard for settling insurance disputes in situations where covered and uncovered causes of a harm are independent of each other and the loss would not have occurred but for the joinder of the two. The Florida Supreme Court reasoned the competing “efficient proximate cause doctrine” was inefficient in settling disputes where there was no reasonable way to distinguish the insured’s property loss.

Florida High Court Holds Insurance Carrier’s Duty to Defend may be Triggered by a Construction Defect Notice Against Its Insured

Author: Haldon Greenburg

January 12, 2018 4:05pm

In a case closely watched by insurance carriers, insureds and attorneys alike in the construction industry, the Florida Supreme Court, answered a questioned certified by the 11th Circuit United States Court of Appeals, holding the notice and repair process set forth in Florida Statutes Chapter 558, is a “suit” within the meaning of the commercial general liability policy issued by a carrier to its insured.

Florida Homeowner Coverage And The Concurrent Loss Doctrine

Author: Nathan Berkeley

December 1, 2017 4:49pm

In the aftermath of Hurricane Irma, Michael Grunwald of Politico authored an article examining the venal beginnings of America’s fastest-growing city, Cape Coral, Florida. Entitled “The Boomtown That Shouldn’t Exist,”[1] Mr. Grunwald’s describes Cape Coral’s city planning as non-existent, calling it the “least natural, worst-planned, craziest-growing piece of an unnatural, badly planned, crazy-growing state.” He goes on to describe Cape Coral as “a precarious civilization engineered out of a watery wilderness, a bewildering dreamscape forged by greed, flimflam and absurdly grandiose visions that somehow stumbled into heavily populated realities.”

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