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

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Torts — Nursing homes — Arbitration — Enforceability of arbitration agreement — Unconscionability — Confidentiality provisions — Error to deny motion to compel arbitration based on determination that arbitration agreement was unconscionable where unconscionable provisions were severable — Record supports trial court’s finding that plaintiff met burden of proving some procedural unconscionability where resident contract was one of adhesion and agreement to arbitrate was neither set off nor conspicuous in any manner — Provisions purporting to waive any attorney’s fees; waive any right to appeal the decision of an arbitrator; and allowing defendants to bring certain claims in court while requiring residents to submit all conflict to arbitration are substantively unconscionable and should be severed from arbitration agreement — Court rejects argument that confidentiality provisions in arbitration agreements are substantively unconscionable — The court finds that, because Florida courts have acknowledged and enforced confidentiality agreements related to mediation proceedings and favor alternative dispute resolution, the confidentiality provision was not unconscionable — Remand to strike offending provisions and to enter orders compelling arbitration

47 Fla. L. Weekly D943a ADDIT, LLC and CAPITAL FUNDING GROUP, INC., Appellants, v. SEAN E. HENGESBACH, as personal representative of the Estate of CARL N. INGOLIA, deceased, Appellee. NEW PORT RICHEY OPERATING, LLC; CHG MANAGEMENT NEW PORT RICHEY, LLC; CAPITAL HEALTH GROUP MANAGEMENT, LLC; MILESTONE RETIREMENT COMMUNITIES, LLC; JOHN W. DWYER; KENNETH ASSIRAN; TIMOTHY Read More »

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Torts — Automobile accident — Discovery — Non-parties — Medical records — Appeals — Certiorari — Trial court departed from essential requirements of the law by compelling production of records pertaining to defendant’s emergency medical treatment arising from the subject motor vehicle accident without first conducting an in camera review of the documents

47 Fla. L. Weekly D942a MICHAEL ZAWISTOWSKI and LORI HALTEMAN, Petitioners, v. MICHAEL GIBSON and GEICO GENERAL INSURANCE COMPANY, Respondents. 2nd District. Case No. 2D21-1703. April 27, 2022. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Paul L. Huey, Judge. Counsel: Anthony J. Russo and Mihaela Cabulea of Butler Weihmuller Katz Read More »

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Workers’ compensation — Compensable accidents — Going and coming rule — Exceptions — Traveling employee — Claimant electrician, who was provided to employer through a separate employee-leasing company and only paid for time spent at job site, seeking compensation for injuries suffered in a vehicle accident which occurred while claimant was driving from his home to the job site — Judge of compensation claims erred by failing to apply “going or coming” exclusion based on JCC’s finding that claimant worked as a “field employee” rather than at employer’s premises; claimant transported materials and tools in his vehicle; and that employer provided claimant with a gas allowance — Application of statutory exclusion does not turn on whether employer owns the location where the work is performed, but applies when an employee suffers injury while they are going or coming from work — Discussion of “traveling employee” exception to going and coming rule — Claimant was not a traveling employee because he was not in a compensation status while traveling — None of the evidence regarding monthly company credit card allowance for gas demonstrated that employer intended to reimburse claimant for any specific mileage cost he incurred between his home and job sites

47 Fla. L. Weekly D952b DSK GROUP, INC., and ZURICH AMERICAN INSURANCE COMPANY, Appellants, v. JORGE ZAYAS HERNANDEZ, Appellee. 1st District. Case No. 1D19-2632. April 27, 2022. On appeal from an order of the Office of the Judges of Compensation Claims. Stephen L. Rosen, Judge. Date of Accident: August 9, 2018. Counsel: H. George Kagan Read More »

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Torts — Damages — Past medical expenses — Evidence — Collateral source — Medicare benefits — Holding in Joerg v. State Farm Mutual Automobile Insurance Co. prohibiting the introduction of evidence of Medicare benefits in a personal injury case for purposes of a jury’s consideration of future medical expenses does not apply to past medical expenses

47 Fla. L. Weekly S115b ELAINE DIAL, Petitioner, v. CALUSA PALMS MASTER ASSOCIATION, INC., Respondent. Supreme Court of Florida. Case No. SC21-43. April 28, 2022. Application for Review of the Decision of the District Court of Appeal Certified Great Public Importance. Second District — Case No. 2D18-4339 (Lee County). Counsel: Mark A. Boyle, Alexander Brockmeyer, Read More »

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Insurance — Personal injury protection — Coverage — Rescission of policy — Material misrepresentations — Declaratory action seeking declaration as to coverage and provider’s eligibility to receive PIP benefits in light of insurer’s failure to pay or deny claim — Error to enter summary judgment in favor of provider based on conclusion that insurer had breached contract by failing to pay or deny claim within thirty days and that its rescission of policy was improper — While the failure to pay or deny the claim within the thirty days prescribed by section 627.736(4) made provider’s claim “overdue,” which entitled provider to bring suit for breach of contract and exposed insurer to additional penalties, that failure to pay or deny the claim in accordance with section 627.736(4) did not constitute a breach of contract and did not constitute a waiver of insurer’s defenses under section 627.409

47 Fla. L. Weekly D896a CENTURY-NATIONAL INSURANCE COMPANY, Appellant, v. REGIONS ALL CARE HEALTH CENTER, INC. a/a/o REMY JEAN, Appellee. 2nd District. Case No. 2D21-198. April 20, 2022. Appeal from the County Court for Hillsborough County; Michael C. Bagge-Hernandez, Judge. Counsel: William J. McFarlane, III, and Michael K. Mittelmark of McFarlane Dolan & Prince, Coral Read More »

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