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

Thursday, March 2, 2017

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

On February 22, 2017, in Hernandez v. Florida Peninsula Insruance Company, No. 3D16-415, the Florida Third DCA dismissed a plaintiff’s petition for a writ of certiorari seeking to quash the trial court’s order abating their declaratory judgment and breach of contract claims filed against their property insurer.  The property insurer maintained that it had timely exercised its contractual option to repair the damaged property to its pre-loss condition and that any legal action should be abated until they had an opportunity to perform the repairs.

The Third DCA held that to obtain a writ of certiorari, the petitioner must show (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal. Bd. of Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002). The Court noted that the second and third elements are “sometimes referred to as irreparable harm,” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012), and “[t]he establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.” Stockinger v. Zeilberger, 152 So. 3d 71, 73 (Fla. 3d DCA 2014). Therefore, if the petitioner fails to make a prima facie showing of irreparable harm, the reviewing court must dismiss the petition as it lacks jurisdiction. See Bared & Co., Inc. v. McGuire, 670 So. 2d 153 (Fla. 4th DCA 1996) (“If petitioner has failed to make a prima facie showing of irreparable harm, [appellate court] lacks jurisdiction and will enter an order dismissing the petition [for writ of certiorari].”).  Citing an almost factually identical case, Fernandez-Andrew v. Florida Peninsula Insurance Co., Case No. 3D16- 331 (Fla. 3d DCA Jan. 25, 2017), the Third DCA ruled that a showing of irreparable harm had not been made because after the repairs are made, the plaintiff can seek to lift the abatement to dispute the scope of repairs or the failure to return the property to its pre-loss condition.


Previous Posts

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

Archived Posts

2017
April
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 reverses trial court’s dismissal of plaintiff’s claim, ruling plaintiff’s alleged fraud upon the trial court not sufficiently proven
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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