46 Fla. L. Weekly D2325a SCOTT LENORD CALLARI, Appellant, v. ELIZABETH WINKELJOHN, Appellee. 3rd District. Case No. 3D20-0870. L.T. Case No. 18-20841. October 27, 2021. An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge. Counsel: de Beaubien, Simmons, Knight, Mantzaris & Neal, LLP, and Kenneth P. Hazouri (Orlando), for appellant. Wallen | Read More »
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Insurance — Personal injury protection — Coverage — Medical expenses — Reasonable, related, and necessary treatment — Trial court erred in granting summary judgment in favor of medical provider with regard to issue of reasonableness of charges — Affidavit and deposition of provider’s owner were conclusory and self-serving, and insufficient to support summary judgment, where owner did not have actual knowledge of reasonable prices — Trial court incorrectly struck affidavit of insurer’s expert coding witness — Conclusion that witness failed to consider amount providers were charging in the community and “did not do the right computation, based upon the right information” was contradicted by expert’s affidavit — Trial court erred in entering summary judgment on medical necessity and relatedness where genuine issues of material fact existed — Trial court erred in weighing credibility of experts and discounting insurer’s expert when ruling on summary judgment motion
46 Fla. L. Weekly D2338a STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. HOLLYWOOD DIAGNOSTIC CENTER, INC. a/a/o JUANITA B. DANCY, Appellee. 4th District. Case No. 4D21-202. October 27, 2021. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County; John D. Fry, Judge; L.T. Case Nos. 062010SC013978AXXXCE and 062018AP011524AXCCCE. Counsel: DeeAnn J. Read More »
Insurance — Homeowners — Attorney’s fees — Excessive award — Competent, substantial evidence did not support award of attorney’s fees — Lodestar — Findings that hourly rates billed for each attorney were reasonable approved — Lodestar amount must be reversed where the record does not contain competent, substantial evidence that number of hours billed was reasonable, and the court adopted plaintiffs’ fee expert’s blanket reduction to number of hours expended without explanation — Multiplier — Contingency risk — Error to apply a multiplier where record is devoid of any evidence that plaintiffs could not have obtained other competent counsel in relevant market absent availability of a contingency fee multiplier, and plaintiff’s counsel did not establish that there was a risk of nonpayment as parties’ retainer agreement expressly provided for counsel’s recovery of fees — Error to award litigation costs without evidence regarding the reasonableness of the litigation costs or whether plaintiffs intended to call the invoiced-expert-witnesses for trial
46 Fla. L. Weekly D2324b CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. JOSEPH CASANAS AND NANCY CERVANTES, Appellees. 3rd District. Case No. 3D20-322. L.T. Case No. 18-1723. October 27, 2021. An Appeal from the Circuit Court for Miami-Dade County, Martin Zilber, Judge. Counsel: Luks, Santaniello, Petrillo & Cohen, and Lauren J. Smith (Stuart), for appellant. Alvarez, Read More »
Torts — Automobile accident — Damages — Setoff — Collateral sources — Settlement agreements — Uninsured motorist insurance — No error in denying defendant’s request to set off settlement proceeds plaintiff received from plaintiff’s uninsured motorist insurer against jury verdict — Defendant preserved claim that she was entitled to setoff of settlement proceeds under section 768.041(2) where, although defendant never specifically cited the statute below, the issue was thoroughly litigated in the trial court, and both parties and trial court relied on case law analyzing setoff of UM settlements under both sections 768.041(2) and 768.76(1) — Defendant is not entitled to a setoff in amount of settlement under section 768.041(2) where claims plaintiff asserted against his UM insurer were not asserted against defendant, and defendant was indisputably not a joint tortfeasor with UM insurer — Although settlement does not differentiate categories of damage to which the settlement funds are attributable, defendant is not entitled to recover the entire amount of the undifferentiated recovery as a setoff where plaintiff’s claims against UM insurer could not be brought against defendant — Court rejects argument that denial of setoff results in a windfall to plaintiff — Setoff under section 768.76(1) is unavailable because the UM insurer settlement proceeds do not fall within the statutory definition of “collateral sources” set forth in section 768.76(2)(a) — Extracontractual damages paid to a first-party claimant on a UM bad faith claim do not meet definition of “collateral source” because it is not a payment of “benefits” — Fact that some portion of the proceeds fell within the definitional ambit of section 409.910(6) has no bearing on whether the proceeds meet the definitional criteria of section 768.76(2)(a), which provides a narrower, more specific definition of “benefits” and sources thereof than section 409.910(6) — Question certified: Is a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim subject to setoff under section 768.041(2) or a collateral source within the meaning of section 768.76?
46 Fla. L. Weekly D2221a ALBERTA S. ELLISON, Appellant, v. RANDY WILLOUGHBY, Appellee. 2nd District. Case No. 2D19-1961. October 13, 2021. Appeal from the Circuit Court for Hillsborough County; Ralph C. Stoddard, Judge. Counsel: Paul L. Nettleton of Carlton Fields, P.A., Miami; and Christine R. Davis of Carlton Fields, P.A., Tallahassee, for Appellant. Brent Steinberg, Read More »
Insurance — Homeowners — Water extraction and remediation — Emergency measures — Reimbursement limitation — Assignee’s action against insurer claiming breach of contract for failure to pay for water extraction services at insured’s property — No error in entering summary judgment in favor of insurer where clear wording of policy established a reimbursement cap on expenses for emergency measures which could not be exceeded without request to, and prior approval from, insurer — Trial court did not err in rejecting assignee’s alternative argument that it could recover under policy provision insuring against direct loss to property because invoice was for water extraction and “remediation,” and thus not within emergency measure policy provisions — Complaint clearly described plaintiff’s work as water extraction and not as any type of repair — Moreover, work under that policy provision was not encompassed by terms of assignment
46 Fla. L. Weekly D2245b DAMAGE SERVICES, INC. a/a/o GNH REAL ESTATE, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 4th District. Case No. 4D21-604. October 13, 2021. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County; Florence Taylor Barner and Jennifer Hilal, Judges; L.T. Case Nos. COCE19-007411 and CACE20-11788. Counsel: William J. Read More »