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Third District Court of Appeals Further Defines Patency Under Slavin Doctrine

In personal injury cases, the Slavin doctrine can be used as an affirmative defense to allow contractors to escape liability for defects in their work that cause injuries to third parties depending on whether the defect was patent or latent.  Essentially, the doctrine is used to determine whether liability for an injury will rest with… read more

Fourth DCA Finds Testimony Establishes Reasonableness and Necessity

In Walerowicz, the Fourth District Court of Appeals affirmed the trial court’s rulings regarding the sufficiency of evidence for past medical expenses and admission of expert testimony.  The court found the Plaintiffs testimony, the expert’s testimony, and the introduction of medical bills to be sufficient evidence to establish the reasonableness and necessity of medical bills. … read more

Second District Court Of Appeals Interprets Rule 1.260

In Stern v. Horwitz, the Second District Court of Appeals reversed the dismissal of Stern’s negligence cause of action because Florida Rule of Civil Procedure 1.260(a) is clear and unambiguous on its face and does not require dismissal when notice of hearing is not served contemporaneously with the motion for substitution. On February 16, 2011,… read more

Fourth DCA Rules That UM Stacking Coverage Available Where Insurance Company Failed to Meet Statutory Notice Requirements

In Jervis, the Fourth District Court of Appeal determined that an insurance company could not claim that an insured knowingly rejected stacked uninsured (UM) coverage where it had failed to comply with the written notice provisions of Fla. Stat. § 627.727. The Appellant had purchased UM coverage from Geico for two vehicles. Geico argued at… read more

Reinstatement of Defense Verdict in Medical Malpractice Case Serves as Reminder to Avoid Evidentiary Deficiencies

In Staples, the Fifth District Court of Appeal determined that the trial court abused its discretion by granting Plaintiff’s motion for new trial in a wrongful death medical malpractice case. The appellate court’s review of the record revealed that, unlike what the trial court concluded, the jury’s verdict was not contrary to the manifest weight… read more

Offer of Judgment Deemed Valid Despite Failure to Comply with Rule of Civil Procedure

In Castillo v. Costco Wholesale Corp., the appellate court determined that where an offer of judgment complied with Fla. Stat. § 768.79, ambiguity related to provisions of Fla. R. Civ. P. 1.442(c)(2)(F) that the statute did not require did not invalidate the offer. Below, the trial court denied appellant’s motion for attorneys’ fees based on… read more

Florida Supreme Court Adopts New Lawyer Referral Service Rule and Requests Stronger Regulations

On March 8, 2018, the Supreme Court of Florida adopted amendments to the Rules Regulating the Florida Bar regarding lawyer referral services (Rule 4-7.22). Although the amendments are not as strong as the Court had directed them to be, they are aimed at protecting the public from for-profit referral services. Pursuant to the newly adopted… read more

Appellate Court Affirms Summary Judgment in Powell Claim and Strictly Construes “Clear Liability” Standard

In the recent Welford decision, the Eleventh Circuit Court of Appeals affirmed an important order regarding a “Powell claim”, and thereby construed the “clear” liability prong of the Powell test fairly strictly and not how it had been applied previously. By way of background, the general rule in Florida is an insurer is not liable… read more

Jury Verdict Reversed Because of Questions Posed to Corporate Representative Where Liability Admitted

In Mercedes-Benz v. Fortson, the Fifth District Court of Appeal held that the trial court erred in allowing the Plaintiff to question Defendant’s corporate representative regarding the subject car crash where Defendant had stipulated to liability. The appellate court explained that when a defendant admits the entire responsibility for an accident, and only damages are… read more

Fourth DCA Blocks Disclosure of Trade Secrets in Products Liability Case

In the Niagara case, the Fourth DCA held that the circuit court departed from the essential requirements of law when it ordered a product designer to disclose its trade secrets where the party requesting disclosure failed to present evidence to establish that production of the privileged information was reasonably necessary. The decision reminds us that pursuant to… read more

Appellate Court Quashes Trial Court’s Order Granting Leave to Claim Punitive Damages Where Procedural Requirements Not Followed

In Leinberger, petitioner sought review of a trial court order granting respondent’s motion for leave to claim punitive damages. In quashing the trial court’s order, the Fourth DCA concluded that the trial court failed to comport with the procedural requirements for entertaining and ruling on a motion to amend under Fla. Stat. §768.72(1) and Fla…. read more

Court Reminds Litigants of Proper Procedure When Peremptory Strike of Prospective Juror is Challenged as Discriminatory

In the R.J. Reynolds v. Enochs case, R.J. Reynolds and Phillip Morris appealed the final judgment entered in favor of the Plaintiff. The appellate court addressed the Defendants’ argument that the trial court erred by failing to engage in the requisite genuineness analysis in granting Plaintiff’s peremptory challenges to two prospective jurors. During voir dire,… read more

Trial Court Erred When It Applied Wrong Discovery Standard in Products Liability Case

In Westerbeke, the Second District Court of Appeal held that the trial court departed from essential requirements of law when it applied the incorrect law on appellant’s motion to compel the disassembly of a piece of a gas generator involved in a boat explosion. Three separate lawsuits were filed following a boat explosion, which were… read more

Appellate Court Disagrees with Jury’s Award for Loss of Earning Capacity and Reverses Trial Court’s Denial of Collateral Source Set-Off Request

Holding: The 5th DCA held that the trial court abused its discretion in denying defendant’s motion for remittitur or new trial, and erred in denying a set-off amount for which the plaintiff’s healthcare provider released its lien and waived any right to subrogation or reimbursement. Facts: The plaintiff was involved in an automobile accident. He… read more

Gina Marie Bove, as Personal Representative v. Naples HMA, LLC, Case No. 2D15-1680 (2nd DCA)

In Bove, the Second District ruled that the plaintiff’s medical malpractice complaint was untimely filed under the applicable statute of limitations period. The case arose after the plaintiff’s husband died on February 26, 2012 following a retroperitoneal bleed after a bone marrow transplant. The plaintiff met with her counsel on July 12, 2012. Just one… read more