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Sands, White & Sands, P.A. Personal Injury Blog

Wednesday, March 1, 2017

Florida Fourth DCA affirms trial court’s denial of defendant’s motion to compel arbitration based on “browsewrap” link to arbitration agreement on defendant’s website

On February 15, 2017, in Vitacost.com v. McCants, No. 4D16-3384, affirmed the trial court’s denial of the motion of the defendant, a seller of dietary supplements being sued in a product liability action by an internet purchaser, to compel arbitration based on a “browsewrap” link to an arbitration agreement on the defendant’s website.  The 4th DCA noted that there at least two types of agreements found in internet sales: “clickwrap” agreements, which direct a purchaser to the terms and conditions of the sale and require the purchaser to click that they have read those terms and conditions; and “browsewrap” agreements, which merely provide a link to the terms and conditions without requiring the purchaser to acknowledge that he or she has read the terms and conditions prior to completing the sale.  The Court noted that clickwrap agreements are generally enforceable, but that browsewrap agreements have only been enforced “when the purchaser has actual knowledge of the terms and conditions, or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice.”  The Court additionally noted that “[u]niformly, courts have declined to enforce “browsewrap” agreements when the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them.”    


Previous Posts

Florida Supreme Court rules that prevailing insured in homeowners’ insurance case was entitled to payment of attorney’s fees with contingency fee multiplier

Eleventh Circuit affirms $6.7 million verdict for plaintiff in transvaginal mesh product liability case against manufacturer of Pinnacle Pelvic Floor Repair Kit

Florida Fourth DCA rules that plaintiff’s separate proposals for settlement to two defendants were valid even though defendants had discretion as to how to apportion total payment

Florida Second DCA rules that UM insurer waived condition precedent of exhaustion of other collectible insurance when noncompliance was not raised in its affirmative defenses

Florida Second DCA reverses trial court’s dismissal of civil rights complaint, finding that sovereign immunity could not be conclusively established from the face of the complaint

Florida First DCA affirms judgment against defendant tobacco company despite erroneous special jury instruction because jury could have decided case on other grounds

Florida Fourth DCA affirms trial court’s denial of motion to vacate arbitration award; no actual arbitrator bias shown where arbitrator had no knowledge of conflict of interest

Eleventh Circuit concludes that corporate general liability insurance policy did not cover auto accident due to policy exclusion for vehicles with same or similar coverage under another policy

U.S. Supreme Court declines to hear appeal of Florida Supreme Court ruling that Florida constitutional provision relating to records of adverse medical incidents is not preempted by federal law

Florida Fourth DCA rules that Florida statute providing limited governmental immunity for injuries caused by inline skating in designated skating areas is inapplicable to non-designated areas

Archived Posts

2017
October
Florida Supreme Court rules that prevailing insured in homeowners’ insurance case was entitled to payment of attorney’s fees with contingency fee multiplier
Eleventh Circuit affirms $6.7 million verdict for plaintiff in transvaginal mesh product liability case against manufacturer of Pinnacle Pelvic Floor Repair Kit
Florida Fourth DCA rules that plaintiff’s separate proposals for settlement to two defendants were valid even though defendants had discretion as to how to apportion total payment
Florida Second DCA rules that UM insurer waived condition precedent of exhaustion of other collectible insurance when noncompliance was not raised in its affirmative defenses
Florida Second DCA reverses trial court’s dismissal of civil rights complaint, finding that sovereign immunity could not be conclusively established from the face of the complaint
Florida First DCA affirms judgment against defendant tobacco company despite erroneous special jury instruction because jury could have decided case on other grounds
Florida Fourth DCA affirms trial court’s denial of motion to vacate arbitration award; no actual arbitrator bias shown where arbitrator had no knowledge of conflict of interest
Eleventh Circuit concludes that corporate general liability insurance policy did not cover auto accident due to policy exclusion for vehicles with same or similar coverage under another policy
U.S. Supreme Court declines to hear appeal of Florida Supreme Court ruling that Florida constitutional provision relating to records of adverse medical incidents is not preempted by federal law
Florida Fourth DCA rules that Florida statute providing limited governmental immunity for injuries caused by inline skating in designated skating areas is inapplicable to non-designated areas
Florida First DCA rules that testimony by officer on accident reconstruction was erroneously admitted because officer’s findings were based on hearsay and speculation
Florida First DCA rules that when a lender funds a loan relying on a faulty appraisal, the statute of limitations begins to run at the time of funding rather than the later sale of the property
Eleventh Circuit rules that prison officials could rely on fact that defendant’s conviction was statutorily classified as a sex offense in classifying him as a sex offender in prison
September
Florida Third DCA reverses trial court’s judgment for defendant on pleadings, citing contested issue as to whether whistleblower had reported complaints to “appropriate local official”
Florida Third DCA rules that plaintiff homeowners’ claim against their insurer for breach of contract not precluded by “supplemental claims” provision of policy
Eleventh Circuit rules that defendant school superintendent was entitled to qualified immunity for decision not to promote teacher whose father had publicly criticized superintendent
Florida Third DCA strikes wrongful death plaintiff’s punitive damages claim based on plaintiff’s failure to attach proposed amended complaint to motion to add punitive damages claim
Florida Third DCA affirms trial court’s denial of directed verdict for defendant in asbestos mesothelioma case, finding that precise quantification of asbestos exposure was unnecessary
Florida Second DCA rules in Engle progeny tobacco case that applicable punitive damages statute relates back to class certified in 1994 Engle class action complaint
Florida Fourth DCA affirms trial court’s dismissal of civil complaint for lack of prosecution, finds that 5-day statutory deadline for showing of good cause not subject to excusable neglect exception
Florida Second DCA reverses trial court’s dismissal of odometer fraud case as spoliation sanction; auto dealer failed to establish that plaintiff lost, displaced or destroyed repossessed vehicle
Florida Fourth DCA rules that Surgeon Generals’ Reports on dangers of tobacco use were hearsay not admissible as public records or as adoptive admissions by defendant tobacco company
Florida Third DCA rules that default could not be entered against defendant because defendant’s motion to dismiss was filed before clerk’s entry of default
Florida Third DCA reverses trial verdict and judgment for defendant in medical negligence case, finding that jury improperly heard evidence and argument about statute of limitations
Florida Second DCA reverses award of attorney’s fees to party for unsupported claim by party opponent, finding insufficient evidence of rate and reasonableness of attorney’s fees
August
Florida Fifth DCA rules in premises liability case that defendant’s incident report protected from production under work product privilege
Florida Fourth DCA quashes trial court order granting plaintiff leave to claim punitive damages, ruling that plaintiff and trial court failed to adhere to procedural requirements
Florida Fourth DCA rules that mortgage servicer did not have standing to pursue professional negligence claim against property appraiser regarding appraisal of mortgaged property
Florida Third DCA affirms summary judgment for plaintiffs against motor vehicle liability insurer, finds that insurer failed to comply with statutory requirements to decline coverage
Florida Second DCA holds that prevailing plaintiff in medical negligence case entitled to inclusion in cost judgment of fees of treating physician who provided expert testimony
Florida Second DCA rules that homeowner was not required to comply with conditions precedent to filing lawsuit when homeowner’s insurance company had already rejected sinkhole claim
Florida Second DCA holds that Florida Rule of Civil Procedure 1.530(g) prevented addition of liability insurer to judgment against insured more than 15 days after entry of judgment
Florida Second DCA rules that trial court improperly severed the trial of plaintiff’s UM case from trial of plaintiff’s claims against defendant driver for negligence and punitive damages
Florida Fifth DCA reverses trial court’s summary judgment for defendant, holds litigation privilege did not provide absolute immunity for statements made by process server
Florida Fourth DCA reverses trial court’s denial of defendant’s motion to dismiss based on forum non conveniens, citing trial court’s failure to conduct required analysis
Florida Fifth DCA reverses trial court’s denial of defense motion for new trial and for set-off of collateral source payment for which right to subrogation and reimbursement had been waived
Florida Fourth DCA remands case for new trial due to trial court’s erroneous exclusion of evidence, including witness statement to investigating police officer
Florida First DCA affirms trial court’s order granting plaintiff new trial on damages where jury award was substantially below defense’s own acknowledgement of damages
Eleventh Circuit Court of Appeals affirms district court’s dismissal of wrongful death claims by non-U.S. residents against estate of U.S. pilot arising from plane crash in Nigeria
July
Florida Fourth DCA reverses trial verdict for premises liability plaintiff, finds insufficient evidence of dangerous condition and of failure to protect invitees
Eleventh Circuit reverses summary judgment for City for Doral in civil rights case involving alleged wrongful termination of plaintiff for exercising right of political association
Florida Fifth DCA holds that vendor’s history of serving a substantial number of drinks to at-fault driver on multiple occasions precluded summary judgment for vendor in reverse dram shop act case
Florida Supreme Court rules that insurer’s liability policy covered defendant’s liability for attorney’s fee and costs awarded under offer of judgment statute, Fla. Stat. Section 768.79
Florida Supreme Court rules that initial tortfeasor may not seek equitable subrogation from a subsequent tortfeasor when the initial judgment has not been fully satisfied
Eleventh Circuit Court of Appeals rules that Florida Security of Communications Act did not apply to plaintiff’s recording of meeting with police chief
Florida Fourth DCA rules that nursing home’s arbitration agreement was not proceduraly unconscionable despite being executed 34 days after patient’s admission
Florida Fourth DCA rules that trial court erred in allowing treating physician to opine on plaintiff’s ability to quit smoking after ruling him unqualified to opine on plaintiff’s addiction
Florida Second DCA rules on proper division of fees between attorneys for estate and attorneys for statutory survivors in wrongful death case
Eleventh Circuit rules that defendant’s claim of sovereign and qualified immunity must be resolved before defendant can be required to participate in developing Rule 26(f) report
Florida Third DCA denies new trial to tobacco company on defective product claim, finding no reversible error in failure to charge jury on “consumer expectations” test not relied upon by plaintiff
Florida Third DCA finds defendant UM insurer’s proposal for settlement was fatally ambiguous because of discrepancies between proposal and attached release
Eleventh Circuit Court of Appeals rules that Florida product liability case involving Class III medical device not preempted by federal law
June
Florida Fourth DCA quashes trial court order allowing plaintiff to conduct post-trial juror interviews following medical negligence defense verdict
Florida Fourth DCA rules that proposal for settlement was not rendered unenforceable because it referenced but did not incorporate the language of a joint stipulation for dismissal
Florida Fourth DCA rules that deceased smoker’s statutory survivors were not entitled to SOL tolling for Engle class members because decedent knew of tobacco related illnesses in 1989
Florida Fourth DCA rules that owner sleeping in back seat of vehicle was entitled to $100,000 cap on liability under F.S. 324.021(9)(b)(3) because he “loaned” vehicle to driver
Florida Fourth DCA rules that limitation on attorney's fees in Claims Bill was an unconstitutional impairment of contract
Florida Second DCA rules that podiatrist could not offer pre-suit expert opinion concerning negligence of orthopedic surgeon
Florida First DCA rules that personal injury lawsuit against prison governed by four year SOL rather than one year SOL for lawsuits relating to conditions of confinement
Eleventh Circuit Court of Appeals rules that damages determination in UIM breach of contract case is not binding in bad faith case where insurer was not granted appellate review
Florida Fourth DCA rules that forgiveness of prior punitive damages award irrelevant to determination in subsequent action whether award sufficiently punished tortfeasor
Florida Fourth DCA reverses trial court’s summary judgment for medical negligence defendant, finds that liability release executed by patient was unclear and ambiguous
Florida Fourth DCA affirms verdict for rental care company and vehicle lessee where at-fault driver determined to have operated vehicle without express or implied consent of lessee
Florida First DCA affirms trial court’s dismissal of professional negligence complaint on statute of limitation grounds, finding defendant not equitably estopped from raising defense
Florida Supreme Court rules statutory caps on noneconomic damages in medical negligence cases unconstitutional
Florida Fourth DCA reverses trial court’s directed verdict and remands for new trial in case involving alleged vicarious medical negligence liability of healthcare program marketer
Florida Second DCA reverses trial court’s award to plaintiff of costs for video editing and expert witness fees, citing plaintiff’s failure to present testimony on reasonableness and necessity
Florida First DCA reverses trial court’s order denying motion for attorney’s fees and costs due to rejected proposal for settlement, remands as to whether nominal offer made in good faith
Eleventh Circuit rules that Atlanta prosecutor not entitled to absolute prosecutorial immunity in civil rights lawsuit based on alleged improper firing of crime lab director
Eleventh Circuit affirms summary judgment for qui tam defendant, finding insufficient evidence that defendant knew it failed to comply with ambiguous Medicare regulations
Florida Fourth DCA rules that attorney was entitled to evidentiary hearing before trial court could compel his testimony under crime-fraud exception to attorney-client privilege
Florida Fourth DCA applies “tipsy coachman” doctrine and finds no error in trial court’s admission of evidence on improper basis
May
Florida Fifth DCA rules that assumption of risk doctrine applies only in cases involving contact sports or express contracts not to sue.
Florida Fifth DCA remands nursing home negligence case for new trial based on inconsistency of liability verdict with small amount of damages awarded
Florida Fifth DCA orders new trial on punitive damages in wrongful death case because of trial court’s failure to give standard jury instruction on defendant’s financial means
Florida Fourth DCA reverses trial court, rules that plaintiff entitled to determination of whether PIP insurer underpaid medical providers and exposed plaintiff to balance billing
Florida Fourth DCA affirms trial court’s dismissal of personal injury lawsuit for fraud upon the court in failing to disclose prior back and neck injuries
Florida Fourth DCA affirms summary judgment for defendant company on the basis that work injury to “borrowed employee” was subject to Worker’s Compensation immunity
Florida Second DCA rules that proposal for settlement provisions applied to styled declaratory judgment action which sought damages rather than equitable remedies
Florida First DCA rules that proposal for settlement need not include provisions regarding attorney’s fees and punitive damages if this relief is not sought in pleadings
Eleventh Circuit Court of Appeals rejects challenge to constitutionality of giving preclusive effect to Engle findings as to negligence and product liability
Florida Third DCA reverses summary judgment in legal malpractice case, finding disputed issues of material fact existed as to whether the plaintiff could have prevailed in false arrest case
Eleventh Circuit affirms trial court’s summary judgment for correctional center in Section 1983 civil rights case, finding no deliberate indifference to plaintiff’s medical needs
Eleventh Circuit Court of Appeals rules in Section 1983 civil rights case that defense’s police-practices expert could testify about objective reasonableness of officer’s conduct
Florida Fifth DCA rules that Florida’s dangerous instrumentality doctrine applies to case involving car accident in South Carolina in which both parties were Florida residents
Florida Second DCA reverses trial court’s dismissal of plaintiff’s claim, ruling plaintiff’s alleged fraud upon the trial court not sufficiently proven
Florida Fourth DCA reverses summary judgment in favor of brokerage firm, rules that material issue of fact exists with respect to allegation of vicarious liability
Eleventh Circuit Court of Appeals affirms trial court’s approval of government’s settlement agreement with False Claims Act qui tam defendant over relators’ objection
April
Florida Fifth DCA reverses trial court’s abatement of declaratory judgment action against insurer pending conclusion of premises liability action, finding dismissal is proper remedy
Florida Fourth DCA affirms summary judgment for defendant commercial property owner in premises liability action brought by uninvited licensee
Florida Third DCA affirms trial court's denial of defendant's motion to dismiss product liability claim on forum non conveniens grounds
Florida First DCA rules that date of mailing of statutory notice of intent to initiate medical negligence litigation determines timeliness of notice under statute of limitations analysis
Eleventh Circuit Court of Appeals rules that Alabama law imposes a duty on employers to protect employees’ families from “take-home asbestos exposure”
Florida Second DCA reverses trial court’s summary judgment for defendant utility company in case alleging negligent failure to repair protruding water valve on roadway
Florida Second DCA reverses trial court’s summary judgment in abuse of process case against law firm, holds that defendant’s litigation privilege may not apply
Florida Fifth DCA holds that trial court erred in denying defendant’s motion for post-trial interview of juror who allegedly lied in voir dire about previous criminal convictions
Florida Third DCA holds that trial court erred in refusing to allow plaintiff to make a second amendment to complaint
Florida Second DCA rules that Engle progeny tobacco case was based on an intentional tort by tobacco company and therefore not subject to comparative negligence statute
Florida Supreme Court holds that attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment.
Florida Third DCA quashes trial court order compelling defendant hotel’s third party guest survey service from providing names and contact information of hotel guests
Florida Second DCA finds reversible error in trial court’s exclusion of plaintiff’s hearsay admission to paramedic at scene concerning cause of auto accident
Florida First DCA affirms summary judgment in premises liability case where plaintiff observed dangerous condition and chose not to step around it
Florida Supreme Court rules that federal law does not implicitly preempt state law tort claims of strict liability and negligence by Engle tobacco litigation progeny plaintiffs
Florida Fourth DCA grants certiorari review and quashes trial court order granting plaintiff’s motion to amend business tort complaint to include claim for punitive damages
Florida Second DCA reverses trial court’s entry of summary judgment for premise liability defendants, finding disputed issue of fact existed regarding constructive notice
Eleventh Circuit Court of Appeals vacates summary judgment granted to defendant law enforcement officer on plaintiff’s excessive-force claim.
March
Florida Fourth DCA holds that defendant’s Proposal for Settlement was enforceable despite use of broader language in Releases regarding parties and incidents covered
Florida Fourth DCA reverses trial court’s dismissal of complaint in personal injury lawsuit on statute of limitations grounds
Eleventh Circuit Court of Appeals rules that trial court did not err in finding inconsistent verdict during middle of clerk’s pronouncement of verdict and instructing jury to reconsider verdict
Florida Fourth DCA rules that third-party defendant voluntarily dismissed from action could not be added as defendant after expiration of statute of limitations
Florida Second DCA rules that Medicaid lien for past medical expenses does not extend to amount of personal injury settlement allocated to future medical expenses
Florida Fifth DCA reverses trial court’s entry of summary judgment for premise liability defendants based on obvious danger doctrine
Florida Third DCA reverses trial court’s holding that proposal for settlement was fatally ambiguous because it did not clearly indicate that it did not require acceptance by both defendants
Florida First DCA rules that trial court committed error by allowing questioning as to how many of witness’ previous felony convictions were crimes of dishonesty
Florida First DCA reverses trial court’s directed verdict on amount of past medical expenses in case involving medical treatment for two successive accidents
Eleventh Circuit Court of Appeals reverses summary judgment for defendants, finding lack of complete diversity due to citizenship of individual LLC members
Florida Fourth DCA rules that spouse must be married to the decedent before the date of injury to recover damages for loss of consortium under Wrongful Death Act
Florida Third DCA reverses trial court’s denial of summary judgment for defendant insurer, finding that policy was an “excess policy” not subject to the requirement of a written waiver of UM coverage
Florida Third DCA dismisses plaintiff’s petition for writ of certiorari because no showing of irreparable harm from trial court’s abating declaratory judgment action against insurer
Florida First DCA affirms judgment in Engle progeny case, rejects defendant’s claims of error due to juror misconduct in failing to disclose alleged bias against tobacco companies
Florida First DCA reverses judgment in Engle progeny tobacco case and orders retrial based on improper closing argument by plaintiff’s counsel
Florida First DCA rules that dangerous instrumentality doctrine did not extend liability to decedent’s estate based on implied consent of nominated but not yet appointed personal representative
Florida Fourth DCA affirms trial court’s denial of defendant’s motion to compel arbitration based on “browsewrap” link to arbitration agreement on defendant’s website
Florida Third DCA rules that service of proposal for settlement must comply with the email service requirement of Florida Rule of Judicial Administration 2.516
Florida Third DCA dismisses interlocutory appeal of order denying summary judgment because trial court did not determine “as a matter of law” that defendant was not entitled to sovereign immunity
Florida Third DCA reverses trial court ruling that 2012 PIP Act provision denying chiropractors the right to certify emergency medical condition is unconstitutional
Florida Second DCA rules that notice requirements of Fla. Stat. 48.161(1 apply to substitute service on LLC under Fla. Stat. 605.0117
Florida Second DCA holds that discovery permitted under arbitration agreement need not mirror discovery permitted under Florida Rules of Civil Procedure
Florida Second DCA rules that plaintiff was barred from asserting a parallel state law claim against manufacturer of medical device approved through Premarket Approval Process (PMA)
February
Florida Second DCA rules that a new lawsuit need not be filed against FIGA when an insurer is declared insolvent during a first party breach of contract action against the insurer
Florida Supreme Court rules that pre-litigation discovery by a PIP insurer under Fla. Stat. Section 627.736 is limited to production of documents specified in statute
Florida Supreme Court declines to adopt legislative amendment narrowing class of qualifying experts in medical negligence cases
Florida Supreme Court declines to adopt legislative amendment incorporating Daubert standard for expert testimony
Restoration Hardware recalls over 2,000 metal top dining tables due to risk of lead exposure to children
Britax recalls over 600,000 baby strollers due to 33 reports of car seats disconnecting from the strollers and falling to the ground
Fifth District Court of Appeal articulates standards for resolution of motions to amend complaint to add punitive damages claim
Fifth District Court of Appeal rules that special SOL for actions against insolvent insurers and FIGA do not apply to actions filed against an insurer prior to insolvency
Fifth District Court of Appeal reverses trial court's finding that party was entitled to attorney's fees despite their failure to file fee motion within 30 days after the final judgment
Fourth District Court of Appeal reverses trial verdict against insurer in first party property insurance case because of plaintiff's introduction of irrelevant information about her health
Second District Court of Appeal reverses trial court's dismissal of premises liability lawsuit on res judicata grounds
Second District Court of Appeal reverses trial court's award of fees and costs, holds that proposal for settlement was fatally flawed
First District Court of Appeal reverses trial court's entry of declaratory judgment that insurance coverage existed due to operation of estoppel doctrine against insurer
Hyundai recalls certain 2017 model year Elantra vehicles for replacement of brake system booster
GM recalls certain Pontiac Solstice and Saturn Sky vehicles because front passenger air bag may not deploy
Walt Disney Parks and Resorts recalls Mickey Mouse Nightlights and Infant Hoodie Sweatshirts due to hazards
Fourth District Court of Appeal reverses trial court's summary judgment in favor of defendant in personal injury case involving restaurant patron's ingestion of broken mussel shell
Fifth District Court of Appeal denies defendant's petition for writ of certiorari to quash order granting medical negligence plaintiff leave to amend complaint to assert a claim for punitive damages
Third District Court of Appeal affirms summary judgment in favor of hospital in visitor slip and fall case
Second District Court of Appeal reverses trial court's dismissal of plaintiff's complaint against City of Tampa for alleged failure to comply with sovereign entity pre-suit notice requirement
Second District Court of Appeal reverses court order compelling arbitration of medical negligence claims
Florida Supreme Court rules that state constitution provision guaranteeing access to records relating to adverse medical incidents not preempted by federal law
Florida Supreme Court rules that limitation on attorney's fees in Claims Bill was an unconstitutional impairment of contract
Eleventh Circuit Court of Appeals rules that County cannot unilaterally settle wrongful death claim that exposes excess insurance carrier to liability
Fourth DCA reverses circuit's court dismissal of legal malpractice claim and rejects court's finding that the claim was premature
Third DCA rules that defendant was not on constructive notice of soup spill causing slip and fall at bank building
Florida Supreme Court rules that statutory presumption regarding foreign bodies unintentionally left in surgical patients applies even where there is direct evidence of medical negligence
January
2016


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