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 Read More »
Articles
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 Read More »
Torts — Damages — Noneconomic — Additur — Trial court abused its discretion by denying plaintiff’s motion for additur after jury awarded him no damages for past pain and suffering despite fact that plaintiff had suffered second-degree burns and blisters on his foot which were caused by defendant’s negligent overheating of the water in plaintiff’s hotel room — Where the record shows that evidence of pain is undisputed or substantially undisputed, a trial court abuses its discretion by denying additur when there is a zero award for pain and suffering — Remand for reconsideration of plaintiff’s motion if same judge is available — If same judge is not available, a new trial limited to plaintiff’s past pain and suffering is required
49 Fla. L. Weekly D1632b ROBERT MCGARY, Appellant, v. PACIFICA DAYTONA, LLC f/d/b/a Perry’s Ocean Edge Resort, Appellee. 5th District. Case No. 5D2022-0765. L.T. Case No. 2018-31851-CICI. August 2, 2024. On appeal from the Circuit Court for Volusia County. Dennis Craig, Judge. Counsel: Rob T. Cook and Jonathan J. Luca, of Jonathan J. Luca, P.A., Read More »
Insurance — Property — Replacement cost — Measure of damages — Trial court erroneously allowed jury to consider evidence of estimated cost to repair items damaged by covered loss where insureds sold property before making the repairs — Policy clearly and unambiguously provided that insureds were not entitled to their repair costs unless and until “work is performed and expenses are incurred” — Conflict certified — On remand, trial court to confine proof at new trial on damages to only those damages for which recovery is permitted under policy’s clear and unambiguous terms
49 Fla. L. Weekly D1575a UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. IRMA QURESHI and GEORGE GUERRERO, Appellees. 4th District. Case No. 4D2023-1338. July 24, 2024. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No. CACE21007238. Counsel: Kara Rockenbach Link and David A. Noel Read More »
Insurance — Complaint — Amendment — Addition of claim for bad faith — Trial court erred by denying plaintiff’s motion for leave to amend its complaint to pursue bad faith action following appraisal award without finding prejudice, abuse of privilege, or futility — Amendment would not be futile simply because insurer was not found to have breached policy — Judgment on breach of contract action is not only way of obtaining favorable resolution, which is necessary prerequisite to filing bad faith claim
49 Fla. L. Weekly D1441a SNAPPERS KEY LARGO LLC, et al., Appellants, v. CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, SUBSCRIBING TO POLICY NO. BW33816281, Appellees. 3rd District. Case No. 3D23-1138. L.T. Case No. 18-599-P. July 10, 2024. An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig, Judge. Counsel: Greenspoon Marder LLP and John Read More »