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

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Archives for September 2019

September 27, 2019 by Jennifer Kennedy

Insurance — Homeowners — Trial court did not abuse discretion in entering summary judgment for insurer — Absence of transcript prevents meaningful review of whether trial court abused discretion by striking insureds’ counter-affidavit at summary judgment hearing as untimely — Trial court did not abuse discretion by denying motion for rehearing premised upon new evidence

44 Fla. L. Weekly D2422a Insurance — Homeowners — Trial court did not abuse discretion in entering summary judgment for insurer — Absence of transcript prevents meaningful review of whether trial court abused discretion by striking insureds’ counter-affidavit at summary judgment hearing as untimely — Trial court did not abuse discretion by denying motion for Read More »

Filed Under: Uncategorized

September 27, 2019 by Jennifer Kennedy

Torts — Premises liability — Open and obvious danger — Uneven floor levels — Action arising out of injury suffered at skating rink which was allegedly caused by an improper and unmarked change in elevation between the skating rink floor and the building’s sub floor — No error in granting summary judgment in favor of defendant, as uneven floor levels in public places, by themselves, do not constitute latent, hidden, or dangerous conditions — Because the uneven floor level constituted an open and obvious danger, defendant had no duty to warn of the difference in floor levels — Dim lighting does not transform an otherwise obvious change in floor elevation into a latent danger

44 Fla. L. Weekly D2431a Torts — Premises liability — Open and obvious danger — Uneven floor levels — Action arising out of injury suffered at skating rink which was allegedly caused by an improper and unmarked change in elevation between the skating rink floor and the building’s sub floor — No error in granting Read More »

Filed Under: Uncategorized

September 27, 2019 by Jennifer Kennedy

Dissolution of marriage — Child support — Income — When calculating child support, trial court erred in excluding from wife’s income automobile expenses paid by wife’s business

44 Fla. L. Weekly D2387a Dissolution of marriage — Child support — Income — When calculating child support, trial court erred in excluding from wife’s income automobile expenses paid by wife’s business CLAUDE MIKHAIL, Appellant, v. CHRISTINE MIKHAIL, Appellee. 2nd District. Case No. 2D18-2153. September 20, 2019. Appeal from the Circuit Court for Hillsborough County; Read More »

Filed Under: Uncategorized

September 27, 2019 by Jennifer Kennedy

Consumer law — Deceptive and unfair trade practices — Civil procedure — Trial court erred in granting defendant’s post-trial motion to set aside verdict on ground that there was no evidence that defendant had engaged in unfair or deceptive acts or practices in the conduct of trade or commerce where that ground was not raised in defendant’s prior motion for directed verdict — Trial court also erred in granting defendant’s alternative motion for new trial — Verdict was not contrary to manifest weight of evidence — Because defendant failed to object to allegedly inconsistent verdicts on FDUTPA and negligence counts before jury was discharged, any such challenge was waived

44 Fla. L. Weekly D2385a Consumer law — Deceptive and unfair trade practices — Civil procedure — Trial court erred in granting defendant’s post-trial motion to set aside verdict on ground that there was no evidence that defendant had engaged in unfair or deceptive acts or practices in the conduct of trade or commerce where Read More »

Filed Under: Uncategorized

September 27, 2019 by Jennifer Kennedy

Workers’ compensation — Settlement agreement — Enforceability — Appeals — Appellate court lacks jurisdiction to review order denying employer/carrier’s motion to enforce settlement agreement where order was not final, and did not fall within rule 9.180(b)(1)’s finite list of appealable nonfinal orders — Court rejects argument that serial nature of workers’ compensation cases requires that the term “final order” as used in rule 9.180 be given a modified meaning for purposes of the rule

44 Fla. L. Weekly D2373c Workers’ compensation — Settlement agreement — Enforceability — Appeals — Appellate court lacks jurisdiction to review order denying employer/carrier’s motion to enforce settlement agreement where order was not final, and did not fall within rule 9.180(b)(1)’s finite list of appealable nonfinal orders — Court rejects argument that serial nature of 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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