49 Fla. L. Weekly D1746a UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. KIMBERLY CORTEZ and CARLOS CORTEZ, Appellees. 4th District. Case No. 4D2023-0676. August 21, 2024. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE18-005984. Counsel: Kara Rockenbach Link and David A. […]
Articles
Insurance — Homeowners — Appraisal — Attorney’s fees — Prevailing party — Trial court erred in denying insureds’ motion for attorney’s fees they incurred to petition for an appraisal with insurer based on determination that insureds had filed suit prematurely before a breakdown had occurred in claims adjusting process — Insurer’s position that it would not engage in appraisal without insureds’ actual cash value estimate, which trial court had previously determined was not required in a prior unappealed order, was a breakdown in negotiations — Because the insurer refused to negotiate without the insureds providing an actual cost value estimate, the lawsuit was the necessary catalyst to secure policy benefits — Remand for hearing on amount of fees due to insureds
49 Fla. L. Weekly D1744a 7635 MANDARIN DRIVE, LLC, GENE LAWSON, and NITA LAWSON, Appellants, v. CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, SUBSCRIBING TO POLICY NO. B050719MKSC000018-00, Appellee. 4th District. Case No. 4D2023-2474. August 21, 2024. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jaimie R. Goodman, Judge; L.T. Case No. […]
Civil procedure — Dismissal — Service of process — Waiver — Error to dismiss complaint for insufficient service — While plaintiff did not re-serve process on defendant after initially dismissing defendant from lawsuit, defendant waived defense of insufficient service by filing a motion for summary judgment directed to the merits of the case before raising that defense
49 Fla. L. Weekly D1782c STEPHANIE PASSAFUME, Appellant, v. SHIFA HEALTHCARE HOLDINGS, LLC, JOHN BATISTA, M.D., INDIVIDUALLY, JOHN BATISTA M.D., P.A., PHOENIX AMERICAN MEDICAL, LLC, and KELLIE DEGROAT, Appellees. 5th District. Case No. 5D2023-2472. L.T. Case No. 2019-CA-805. August 23, 2024. On appeal from the Circuit Court for Hernando County. Donald E. Scaglione, Judge. Counsel: […]
Insurance — All-risks policy — Summary judgment — Trial court erred in entering final summary judgment in favor of and awarding damages to insured where argument section of insured’s motion for final summary judgment addressed only post-loss obligations, notice, policy compliance, and insurer’s affirmative defenses, but did not argue or demonstrate that there was no genuine dispute as to fact that insured property suffered a loss while the policy was in effect or the amount of those damages — Remand for further proceedings
49 Fla. L. Weekly D1710b UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. HANS JURG BANZIGER, Appellee. 4th District. Case No. 4D2022-2977. August 14, 2024. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Sandra Perlman, Judge; L.T. Case No. 21-003421 CACE (04). Counsel: David A. Noel and Kara Rockenbach Link of […]
Torts — Premises liability — Slip and fall — Restaurants — Transitory foreign substance — Knowledge of dangerous condition — Damages — Evidence — Expert — Change of opinion — Trial court did not err by denying defendant’s motion for directed verdict — Evidence, viewed in light most favorable to plaintiff, was sufficient to prove that defendant’s employee had actual knowledge of the slippery condition in the restaurant bathroom that had caused plaintiff to slip and fall where the evidence reflected that employee, who had previously gone in the restroom to mop, was last person in restroom prior to plaintiff’s fall — Because employee’s knowledge is chargeable to defendant, jury could reasonably find that defendant had actual knowledge of the greasy and slippery floor — Trial court abused its discretion by allowing plaintiff’s expert to opine at trial that, within a reasonable degree of medical probability, plaintiff had perforated his colon through the forceful use of an enema to relieve constipation he had suffered as a result of post-surgery pain medication — Expert’s mid-trial opinion differed from his pretrial deposition testimony in which expert could only say that it was an assumption or possibility that perforation was due to enema use — When judged against expert’s pretrial deposition, expert’s mid-trial causation opinion was a surprise within the meaning of Binger — Appropriate remedy is new trial on damages — In the absence of finding bad faith or intentional misconduct, admission of expert’s changed opinion is not precluded at new trial
49 Fla. L. Weekly D1625a SEVEN RESTAURANTS, LLC, d/b/a BURGER KING, Appellant, v. RICHARD L. TULECKI, JR., Appellee. 4th District. Case No. 4D2023-1925. July 31, 2024. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. CACE21-001669. Counsel: Warren B. Kwavnick of The Law Office of […]