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Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

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Archives for September 2014

September 25, 2014 by admin

Circuit Court Appellate Decision — Error to preclude insurance carrier from deposing medical provider regarding reasonableness of charges — Scope of discovery

21 Fla. L. Weekly Supp. 992a Online Reference: FLWSUPP 2110OLIV Insurance — Discovery — Depositions — Error to prohibit insurer from deposing medical provider regarding reasonableness of charges UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. CORAL GABLES CHIROPRACTIC, PLLC, a/a/o Ricardo Olivera, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. Read More »

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September 25, 2014 by admin

Workers’ Compensation — Compensable accidents / conditions

39 Fla. L. Weekly D2010a Workers’ compensation — Firefighters — Compensable accidents — No error in finding firefighter’s coronary artery disease and hypertension compensable or in awarding authorization to treat these conditions — “Disability” was established by medical evidence that claimant was restricted from working because of his need for heart catheterization and that the Read More »

Filed Under: Articles

September 25, 2014 by admin

Homeowners Insurance — Severability — Intentional acts exclusion did not bar coverage for negligent supervision of insured’s son who committed intentional tort

39 Fla. L. Weekly D2016c Insurance — Homeowners — Liability — Trial court erred in finding that homeowners policy did not provide personal liability coverage for claim of negligent supervision for underlying intentional tort of battery committed by insureds’ son — Intentional act exclusion and severability clause, which stated that the insurance applied separately to Read More »

Filed Under: Articles

September 25, 2014 by admin

Bad Faith — Uninsured Motorist — Effect of jury determination of liability and damages in the UM case upon damages in bad faith case

39 Fla. L. Weekly D1988a Insurance — Uninsured motorist — Bad faith — Jury’s determination of damages in first trial, which also established liability of tortfeasor, was binding on insurance company in bad faith trial — Circuit court did not err by treating excess verdict from UM trial as conclusive evidence of plaintiff’s damages in Read More »

Filed Under: Articles

September 25, 2014 by admin

Homeowners Insurance — Sinkhole loss — Appraisal of dispute over method of repair — waiver of right to appraisal

39 Fla. L. Weekly D2020a Insurance — Homeowners — Sinkhole claim — Appraisal — Trial court did not err in ordering appraisal of dispute over method of repair — Method or extent of necessary repairs is within scope of “amount of loss” appraisal provision — Insureds did not waive right to demand appraisal by participating Read More »

Filed Under: Articles

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  • Winn-Dixie, website, customers, prescription, place of public accommodation, coupons, refills, privileges, disabled, advantages, accommodations, visually-impaired, auxiliary, public accommodation, inaccessible, barrier, offerings, sighted, majority opinion, intangible, enjoyment, locator, rewards, card, district court, facilities, shopping, software, communicate, in-store – The difficulties caused by the customer’s inability to access much of the store’s website constituted a concrete and particularized injury that was not conjectural or hypothetical, and would continue if the website remained inaccessible; [2]-The statutory language in Title III of the ADA defining “public accommodation” was unambiguous and clear, and public accommodations were limited to actual, physical places, and websites were not a place of public accommodation under the statute; [3]-The store’s website did not constitute an intangible barrier to the customer’s ability to access and enjoy fully the physical grocery store; [4]-Absent congressional action that broadened the definition of “places of public accommodation” to include websites, the appellate court could not extend ADA liability to the facts presented.
  • Civil rights — Employment discrimination — Pharmacist employed by Department of Veterans Affairs brought action against Secretary, alleging that her managers at VA medical center discriminated against her based on her gender and age, retaliated against her because she engaged in protected activity, and subjected her to hostile work environment in violation of Title VII and Age Discrimination in Employment Act — Retaliation — Title VII’s federal-sector retaliation provision requires personnel actions to be made free from any discrimination — Supreme Court’s decision in pharmacist’s case, which held that federal-sector provision of ADEA did not require plaintiff to prove that age was a but-for cause of a challenged personnel action, undermined to the point of abrogation Eleventh Circuit’s prior panel precedent holding that Title VII’s federal-sector retaliation provision requires but-for causation — Standard that Supreme Court articulated for claims under ADEA’s federal-sector provision controls cases arising under Title VII’s nearly identical federal-sector provision — Retaliatory hostile work environment — An actionable federal-sector Title VII retaliatory-hostile-work-environment claim must describe conduct that rises to the level of personnel actions and must be evaluated under “might have dissuaded a reasonable worker” standard rather than the more stringent “severe or pervasive” standard
  • Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Civil procedure — Summary judgment — Opposing affidavit — Trial court abused its discretion in granting motion to strike affidavit of independent medical examiner based on plaintiff’s claim that affidavit “baldly repudiated” affiant’s deposition testimony regarding relationship between injuries and accident and medical necessity of chiropractic treatment — Because affiant’s testimony raised genuine issue of material fact, as it clearly conflicted with testimony of treating chiropractor, order granting summary judgment in favor of assignee/medical provider reversed
  • Wrongful death — Automobile accident — Jurors — Peremptory challenge — Race neutral explanation — Genuineness — New trial — Evidence — Trial court did not abuse its discretion in granting a new trial based on its improper denial of plaintiff’s peremptory challenge of juror — Trial court failed to apply proper legal standard in denying plaintiff’s peremptory strike of juror where it failed to recognize the presumption that plaintiff was exercising her peremptory challenge in a nondiscriminatory manner and hold defendants to their burden of proving purposeful discrimination — Fact that juror was sole African American juror left on the panel is, standing alone, insufficient to override a genuine race-neutral challenge — Trial court erred in granting a new trial based on its determination that verdict finding one of the defendants 100% liable for the fatal accident was against the manifest weight of the evidence — Order shows that trial court improperly re-weighed the evidence and acted as a seventh juror in doing so — Trial court erred in permitting jury to hear evidence related to defendant’s driving history where not only was the evidence unduly prejudicial, but the citations bore no similarity to the circumstances at issue and had no relevance to defendant’s alleged negligence at the time of the accident — Trial court erred in granting defendant’s motion notwithstanding verdict which asserted that defendant should not be liable for the total amount of damages to co-defendant’s tractor-trailer — A new-trial order and order for judgment notwithstanding verdict are mutually inconsistent and may not be granted simultaneously unless granted on the express condition that the order granting the judgment notwithstanding verdict only becomes effective if the order granting new trial is reversed on appeal, which did not happen in this case
  • Workers’ compensation — Prosthetic devices — Limitation of actions — Claimant who had screws and rods inserted in her spine as a result of an injury occurring in 1990 — Judge of compensation claims erred in rejecting employer/carrier’s statute of limitations defense to claim for pain management and a replacement mechanical bed — While applicable 1989 version of workers’ compensation law contained an exemption from its statute of limitations to the right for remedial attention relating to the insertion or attachment of a prosthetic device, there is no evidence that either the prosthesis, or the surgery required to insert it, is causing the need for the requested benefits as opposed to the underlying condition that necessitated the prosthesis in the first place — Fact that claimant may have a prosthetic device is not, standing alone, sufficient to prevent statute of limitations from accruing

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