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

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Articles

January 8, 2023 by Jennifer Kennedy

Attorney’s fees — Proposal for settlement — Ambiguities — Defendant’s proposal for settlement and release were clear and unambiguous notwithstanding supposed conflicting provisions in proposal and typographical error in general release consisting of use of an asterisk in place of the defendant’s name — Proposal and release stated with particularity relevant conditions and all non-monetary terms, and read as a whole, there were no ambiguities that could have reasonably affected plaintiff’s decision whether to accept proposal — Trial court erred by declining to enforce proposal for settlement

48 Fla. L. Weekly D47a PUBLIX SUPER MARKETS, INC., Appellant, v. SIERRA ALFORD, Appellee. 5th District. Case No. 5D21-2612. L.T. Case No. 2019-CA-036338-X. December 30, 2022. Appeal from the Circuit Court for Brevard County, Dale Curtis Jacobus, Judge. Counsel: Michael R. D’Lugo, of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for Appellant. Brian J. Read More »

Filed Under: Uncategorized

January 8, 2023 by Jennifer Kennedy

Attorney’s fees — Prevailing party — Voluntary dismissal with prejudice of second amended complaint following acceptance of proposal for settlement which specifically stated that defendant’s claim for attorney’s fees and costs as set forth in an earlier motion would survive the plaintiff’s acceptance of the proposal — Trial court abused its discretion when it denied defendant’s renewed motion for attorney’s fees and costs based on its interpretation of attorney’s fees “carve-out” provision as limiting court’s consideration of prevailing party status to the circumstances existing on the date defendant served that earlier motion to tax fees and costs and preventing it from considering what happened in litigation after that date

48 Fla. L. Weekly D54a STEVEN CASTO, Appellant, v. FIRST COAST CARDIOVASCULAR INSTITUTE, P.A., Appellee. 1st District. Case No. 1D21-3506. December 30, 2022. On appeal from the Circuit Court for Duval County. Waddell A. Wallace, Judge. Counsel: M. Scott Thomas of Burr & Forman LLP, Jacksonville, for Appellant. Rebecca B. Creed and Dimitrios A. Peteves Read More »

Filed Under: Uncategorized

January 8, 2023 by Jennifer Kennedy

Disabilities — Discrimination — Americans with Disabilities Act — Rehabilitation Act — School boards — Access to public schools — Reasonable accommodation — Injunctions — Appeal from denial of temporary restraining order and preliminary injunction entered in action against school superintendent, individual members of school board, and school district in action brought in the wake of COVID-19 pandemic by students with respiratory disabilities, who claim that school district’s refusal to provide reasonable accommodations for access to in-person schooling constituted a violation of Title II of ADA and Section 504 of Rehabilitation Act — Mootness — Action was not rendered moot by update in Center for Disease Control’s guidelines relating to mandatory masking — Live controversy remained where prayer for relief in students’ motion for preliminary injunction and temporary restraining order asked court to “[o]rder Defendants to develop and implement policies, practices, procedures, and protocols for a multilayered COVID-19 mitigation strategy that follows CDC guidelines for COVID-19 Prevention in K-12 Schools and maintain consistency with the CDC guidelines in the event of subsequent changes, so that Plaintiffs can attend in-person school” — Although CDC guidelines have changed, defendants’ policies remain at odds with the current guidelines — Likelihood of success on the merits — District court erred by misconstruing students’ argument as a right to education “generally,” despite record clearly establishing that students were alleging denial of access to “in-person” education, which is a specific “service, program, or activity” provided to all students by the district — On remand, district court must analyze whether virtual schooling provided by the district is a reasonable accommodation for in-person schooling and, if not, must consider whether the multi-layered approach to COVID-19 precautions sought by students constitutes reasonable accommodation — Unjustified isolation — Because Supreme Court has held that “unjustified isolation” is “properly regarded as discrimination based on disability,” district court must analyze students’ likelihood of success on the merits under this theory

29 Fla. L. Weekly Fed. C2006a L.E., By and through their parent and next friend, Sara Cavorley, B.B., A minor, by and through their parent and next friend, Elizabeth Baird, A.Z., A minor, by and through their parent and next friend, Jessica Zeigler, C.S., A minor, by and through their parent and next friend, Tarasha Read More »

Filed Under: Uncategorized

January 8, 2023 by Jennifer Kennedy

Disabilities — Discrimination — Americans with Disabilities Act — Rehabilitation Act — School boards — Access to public schools — Reasonable accommodation — Injunctions — Appeal from denial of temporary restraining order and preliminary injunction entered in action against school superintendent, individual members of school board, and school district in action brought in the wake of COVID-19 pandemic by students with respiratory disabilities, who claim that school district’s refusal to provide reasonable accommodations for access to in-person schooling constituted a violation of Title II of ADA and Section 504 of Rehabilitation Act — Mootness — Action was not rendered moot by update in Center for Disease Control’s guidelines relating to mandatory masking — Live controversy remained where prayer for relief in students’ motion for preliminary injunction and temporary restraining order asked court to “[o]rder Defendants to develop and implement policies, practices, procedures, and protocols for a multilayered COVID-19 mitigation strategy that follows CDC guidelines for COVID-19 Prevention in K-12 Schools and maintain consistency with the CDC guidelines in the event of subsequent changes, so that Plaintiffs can attend in-person school” — Although CDC guidelines have changed, defendants’ policies remain at odds with the current guidelines — Likelihood of success on the merits — District court erred by misconstruing students’ argument as a right to education “generally,” despite record clearly establishing that students were alleging denial of access to “in-person” education, which is a specific “service, program, or activity” provided to all students by the district — On remand, district court must analyze whether virtual schooling provided by the district is a reasonable accommodation for in-person schooling and, if not, must consider whether the multi-layered approach to COVID-19 precautions sought by students constitutes reasonable accommodation — Unjustified isolation — Because Supreme Court has held that “unjustified isolation” is “properly regarded as discrimination based on disability,” district court must analyze students’ likelihood of success on the merits under this theory

29 Fla. L. Weekly Fed. C2006a L.E., By and through their parent and next friend, Sara Cavorley, B.B., A minor, by and through their parent and next friend, Elizabeth Baird, A.Z., A minor, by and through their parent and next friend, Jessica Zeigler, C.S., A minor, by and through their parent and next friend, Tarasha Read More »

Filed Under: Uncategorized

January 8, 2023 by Jennifer Kennedy

Attorney’s fees — Prevailing party — Voluntary dismissal — Where all counts in complaint involved the same facts and the same parties, trial court’s order dismissing one of multiple counts was not a final order and did not dispose of the action for either party — Plaintiff’s subsequent notice of voluntary dismissal disposed of the action as to both parties and triggered 30-day time frame for filing motion for attorney’s fees — Trial court erred in reversing its initial award of fees to defendant after concluding that motion should have been filed within 30 days of court’s non-final dismissal order

48 Fla. L. Weekly D96c SARA WARD, Appellant, v. RIVKA LIEBER, as Personal Representative of the ESTATE OF LILLIAN K. WASSERMAN, Appellee. 4th District. Case No. 4D22-5. January 4, 2023. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Paige Gillman Kilbane, Judge; L.T. Case No. 502019CA003353. Counsel: Jennifer S. Carroll Read More »

Filed Under: Uncategorized

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Recent Posts

  • Insurance — Homeowners — Windstorm loss — Notice of loss — Timeliness — Prejudice to insurer — No error in entering summary judgment in favor of insurer based on determination that insured failed to overcome presumption that insurer was prejudiced by his failure to timely report claim for hurricane damage — Insured failed to act with reasonable dispatch and within a reasonable time where insured waited two years and seven months to report claim of hurricane damage to his roof — Conclusory affidavits submitted by insured in opposition to summary judgment were insufficient to rebut presumption of prejudice where passage of time rendered insurer unable to determine what current damage was directly attributable to the storm — Court rejects argument that policy was ambiguous because it contained a clause imposing a blanket bar on any hurricane-related claim beyond three-year window and a second clause requiring insured to provide prompt notice of any claim — Clauses, when read together, require an insured to file any hurricane-related claim within three years of the storm, and to act swiftly upon discovering damages
  • Insurance — Uninsured motorist — Bad faith — Complaint — Amendment — Addition of claim for punitive damages — Action alleging that insurer violated law by issuing policies without a written rejection form and by accepting verbal rejections of UM coverage — Error to grant insured’s motion for leave to add punitive damages claim where insured failed to provide reasonable basis to find that insurer’s acts occurred with such frequency as to indicate a general business practice, and were willful, wanton, and malicious and in reckless disregard for insured’s rights
  • Consumer law — Deceptive and Unfair Trade Practices — Proposal for settlement — Attorney’s fees — Costs — Prevailing party — Where partial summary judgment as to liability was granted in favor of plaintiff, but jury awarded no damages, it was not an abuse of discretion for trial court to deny defendant’s request for attorney’s fees as a prevailing party on Florida Deceptive and Unfair Trade Practices Act claim — No error in denying fees and costs under proposals for settlement presented to trial court — None of the proposals proffered satisfied strict requirements of section 768.79 and rule 1.442 where proposals required plaintiff to execute a release but failed to describe release with sufficient detail, contained ambiguity as to punitive damages, and required payment from date of settlement without defining such date — Error to deny request for costs under section 57.041 — A zero judgment constitutes a judgment in favor of the defendant for purposes of recovery of costs under the statute
  • Torts — Premises liability — Slip and fall — Discovery — Relevance — Appeals — Certiorari — Order requiring defendant’s corporate representative to address areas of inquiry related to defendant’s corporate-wide operations is quashed — Allowing corporate-wide discovery amounted to carte blanche discovery that results in irreparable harm and departs from essential requirements of the law — Information is not discoverable based on its relevance to show negligent mode of operation because, under section 768.0755, negligent mode of operation is not a viable theory of recovery in slip-and-fall cases
  • Insurance — Uninsured motorist — Bad faith — Complaint — Amendment — Addition of claim for punitive damages — Action alleging that insurer violated law by issuing policies without a written rejection form and by accepting verbal rejections of UM coverage — Error to grant insured’s motion for leave to add punitive damages claim where insured failed to provide reasonable basis to find that insurer’s acts occurred with such frequency as to indicate a general business practice, and were willful, wanton, and malicious and in reckless disregard for insured’s rights

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