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

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Archives for August 2019

August 16, 2019 by Jennifer Kennedy

Torts — Dismissal — Fraud on the court — Trial court did not abuse discretion by dismissing plaintiff’s personal injury action for fraud on the court where plaintiff grossly misrepresented the nature and extent of her injuries, repudiated prior sworn testimony, and fabricated evidence

44 Fla. L. Weekly D2097a Torts — Dismissal — Fraud on the court — Trial court did not abuse discretion by dismissing plaintiff’s personal injury action for fraud on the court where plaintiff grossly misrepresented the nature and extent of her injuries, repudiated prior sworn testimony, and fabricated evidence VIRGINIA PINO, Appellant, v. CGH HOSPITAL, Read More »

Filed Under: Uncategorized

August 16, 2019 by Jennifer Kennedy

Wrongful death — Automobile accident — Collision with bicycle — Vicarious liability — Dangerous instrumentalities — Exceptions — Beneficial ownership — Father was not vicariously liable for injuries caused by son’s operation of vehicle where clear and unequivocal evidence established that father transferred his beneficial ownership in vehicle to son prior to accident and merely held “naked legal title” under a faulty incomplete transfer — 2009 amendment to section 319.22 did not abrogate common law and do away with beneficial ownership exception to dangerous instrumentality doctrine

44 Fla. L. Weekly D2085a Wrongful death — Automobile accident — Collision with bicycle — Vicarious liability — Dangerous instrumentalities — Exceptions — Beneficial ownership — Father was not vicariously liable for injuries caused by son’s operation of vehicle where clear and unequivocal evidence established that father transferred his beneficial ownership in vehicle to son Read More »

Filed Under: Uncategorized

August 9, 2019 by Jennifer Kennedy

Insurance — Homeowners — Appraisal — Dismissal — Appeals — Non-final orders — Trial court erred in dismissing with prejudice insurer’s counterclaim for specific performance, in which insurer sought to enforce provisions of policy for appraisal and repair after loss, based on a failure to state a cause of action — While it may be more traditional for an insurer to move to compel appraisal to seek enforcement of policy provisions, this does not preclude an insurer from filing a counterclaim alleging that insurer is entitled to enforce provisions of insurance policy through specific performance — No error in dismissing portion of counterclaim seeking temporary injunction as counterclaim on its face did not allege irreparable harm

44 Fla. L. Weekly D2035a Insurance — Homeowners — Appraisal — Dismissal — Appeals — Non-final orders — Trial court erred in dismissing with prejudice insurer’s counterclaim for specific performance, in which insurer sought to enforce provisions of policy for appraisal and repair after loss, based on a failure to state a cause of action Read More »

Filed Under: Uncategorized

August 9, 2019 by Jennifer Kennedy

Insurance — Homeowners — Res judicata — Where court granted summary judgment for insurer in insured’s initial breach of contract action, and appellate court affirmed, insured’s second action which was identical to first action, except that it alleged a greater amount of damages, was barred by res judicata — Intervening change in the law exception to res judicata was not applicable — Insured’s second lawsuit was not a supplemental claim where insured had undertaken no repairs to home

44 Fla. L. Weekly D2019b Insurance — Homeowners — Res judicata — Where court granted summary judgment for insurer in insured’s initial breach of contract action, and appellate court affirmed, insured’s second action which was identical to first action, except that it alleged a greater amount of damages, was barred by res judicata — Intervening Read More »

Filed Under: Uncategorized

August 9, 2019 by Jennifer Kennedy

Attorney’s fees — Proposal for settlement — Trial court properly denied insurance company’s motion for attorney’s fees pursuant to joint proposals for settlement made to two plaintiffs where proposals provided that if either plaintiff accepted the proposal, she would agree to indemnify insurance company for attorney’s fees and costs, including any incurred from continuing litigation should the other plaintiff not settle — Proposals prevent plaintiffs from independently evaluating offer, and proposals would only cause further litigation

44 Fla. L. Weekly D2015b Attorney’s fees — Proposal for settlement — Trial court properly denied insurance company’s motion for attorney’s fees pursuant to joint proposals for settlement made to two plaintiffs where proposals provided that if either plaintiff accepted the proposal, she would agree to indemnify insurance company for attorney’s fees and costs, including Read More »

Filed Under: Uncategorized

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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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