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Monday, March 20, 2017

Florida Second DCA reverses trial court’s dismissal of plaintiff’s claim, ruling plaintiff’s alleged fraud upon the trial court not sufficiently proven


On March 15, 2017, in Duarte v. Snap-On, Incorporated, Case No. 2D15-1952, the Florida Second DCA reversed the trial court’s dismissal of plaintiff’s claim for fraud upon the court in certain answers he provided in deposition about his injuries from an accident subsequent to the accident at issue in the case.  The Second DCA ruled that the plaintiff’s alleged fraud upon the trial court, which consisted of allegedly willfully false omissions and minimizations in his testimony about the severity of the subsequent accident and his medical treatment for the accident, had not been sufficiently proven during the proceedings before the trial court.  The plaintiff in the case was not a native English speaker and there was no dispute that the defendant was liable for the first accident and that it had involved significant injuries.
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Tuesday, March 14, 2017

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


On March 10, 2017, in Willoughby v. AHCA, Case No. 2D15-4845, the Florida Second DCA ruled that a Medicaid lien for past medical expenses did not extend to the amount of a personal injury settlement that had been specifically allocated by the parties as applying to future medical expenses.  In doing so, the Second DCA certified a conflict with the Florida First DCA’s contrary ruling in Estate of Villa v. AHCA, 41 Fla.
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Saturday, March 4, 2017

Florida Fifth DCA reverses trial court’s entry of summary judgment for premise liability defendants based on obvious danger doctrine


On March 3, 2017, in Trainor v. PNC Bank, No. 5D15-4536, the Florida Fifth DCA reversed the trial court’s entry of summary judgment for the defendants in a premise liability case in which the plaintiff had alleged both a breach of a duty to warn and failure to maintain the property in a reasonably safe condition.  The accident at issue occurred in a bank parking lot when the plaintiff stepped in a pothole.  The defendants successfully moved for summary judgment based on the obvious danger doctrine, which recognizes that owners and occupiers should be legally permitted to assume that the invitee will perceive that which would be obvious to them upon the ordinary use of their own senses.
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Saturday, March 4, 2017

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


On March 1, 2017, in Atlantic Civil v. Swift, No. 3D15-1594, the Florida Third DCA reversed the trial court’s denial of the prevailing plaintiff’s motion for attorney’s fees pursuant to Fla. Stat. 768.
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Saturday, March 4, 2017

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


On March 3, 2017, in Spradling v. State, No. 1D16-222, ruled that trial court committed error, albeit harmless error, by allowing questioning as to how many of a witness’ previous felony convictions were crimes of dishonesty.  The First DCA, quoting Atis v. State, 32 So.
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Saturday, March 4, 2017

Florida First DCA reverses trial court’s directed verdict on amount of past medical expenses in case involving medical treatment for two successive accidents


On March 3, 2017, in Haney v. Sloan, No. 1D15-3905, the Florida First DCA reversed the trial court’s directed verdict on the amount of past medical expenses in a case involving medical treatment for two successive accidents.  The First DCA observed that where a plaintiff has been involved in successive accidents but sues just one of the tortfeasors causing her injuries, it is the jury’s role to determine whether the plaintiff’s injuries can be apportioned between the first and second accident, and if the injuries cannot be apportioned, then in accordance with the indivisible injury rule the jury is to find the prior tortfeasor responsible for all of the injuries.  See Gross v.
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Saturday, March 4, 2017

Eleventh Circuit Court of Appeals reverses summary judgment for defendants, finding lack of complete diversity due to citizenship of individual LLC members


On March 2, 2017, in Thermoset Corporation v. Building Materials Corp of America, No. 15-13942, the Eleventh Circuit Court of Appeals vacated the lower court’s summary judgment order in favor of the defendants in a product liability action brought against a building materials manufacturer and its distributor, and remanded with instructions to return the case to the state court from which it was removed, finding that that there was not complete diversity among the defendants.  One of the defendants, Roofing Supply Group Orlando (“RSGO”), the distributor of the other defendant’s manufactured materials, is an LLC, but the plaintiff had failed to allege to allege the citizenship of the individual LLC members in the complaint, as is required under the law in order to prove complete diversity.  See Rolling Greens MHP, L.
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Thursday, March 2, 2017

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


On February 22, 2017, in Kelly v. Georgia Pacific, No. 4D15-4666, the Florida Fourth District Court of Appeal ruled that the Florida Wrongful Death Act., Fla. Stat 768.
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Thursday, March 2, 2017

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


On February 22, 2017, in Zurich American Insurance Company v. Cernogorsky, No. 3D16-689, the Florida Third DCA reversed the trial court’s ruling denying a summary judgment motion by the defendant insurer.  The plaintiff had been injured as a pedestrian and after collecting the insurance BI policy limits of the motorist who struck him, he rejected his own UM policy limits of $10,000 and sought UM coverage under his employer’s insurance policy issued by the defendant.  The basis of his claim was that: (1) he was a covered individual under the company’s policy because the policy covered autos not owned by the company, which according to the plaintiff included vehicles owned by employees; and, (2) the policy provided primary coverage which included UM coverage that extended to him because the company had failed to execute a UM coverage waiver as required by section Fla.
Read more . . .


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.
Read more . . .


Thursday, March 2, 2017

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


On February 14, 2017, in R.J. Reynolds Tobacco Company v. Allen, No. 1D15-4197, the Florida First DCA affirmed the judgment in favor of the plaintiff in an Engle progeny tobacco case, rejecting defendant’s claims of reversible error due to juror misconduct based on a juror’s alleged failure to disclose bias against tobacco companies during jury selection.
Read more . . .


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Previous Posts

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

Archived Posts

2017
March
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 reject's 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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