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

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Articles

September 19, 2019 by Jennifer Kennedy

Insurance — Homeowners — Appraisal — Insurer agreeing that a portion of claim was covered while also asserting that amount of loss did not exceed the deductible and that balance of claimed loss constituted pre-existing damage — Trial court erred in denying insurer’s motion to compel appraisal because insurer did not wholly deny coverage

44 Fla. L. Weekly D2304a Insurance — Homeowners — Appraisal — Insurer agreeing that a portion of claim was covered while also asserting that amount of loss did not exceed the deductible and that balance of claimed loss constituted pre-existing damage — Trial court erred in denying insurer’s motion to compel appraisal because insurer did Read More »

Filed Under: Articles

August 2, 2019 by Jennifer Kennedy

Torts — Negligence — Attorney’s fees — Offer of judgment — Judgment which exceeded more than 25% of offer only when award of punitive damages was taken into account — Error to find that plaintiff was entitled to recover attorney’s fees and investigative costs pursuant to section 768.79 where plaintiff had yet to add a punitive damages claim to complaint at the time offer of judgment was made, and offer explicitly disclaimed punitive damages — Offers of judgment must be evaluated as of the time of the offer and must be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions

44 Fla. L. Weekly D1936e Torts — Negligence — Attorney’s fees — Offer of judgment — Judgment which exceeded more than 25% of offer only when award of punitive damages was taken into account — Error to find that plaintiff was entitled to recover attorney’s fees and investigative costs pursuant to section 768.79 where plaintiff Read More »

Filed Under: Articles

July 12, 2019 by Jennifer Kennedy

Torts — Automobile accident — Discovery — Experts — Undisclosed testimony — Trial court abused its discretion in allowing plaintiff’s expert to testify for the first time at trial about a prior MRI that plaintiff’s expert was not shown until well after discovery deadlines expired — Defendants were prejudiced by plaintiff’s intentional noncompliance with pre-trial discovery order where defendants had given an opening statement telling the jury that plaintiff’s expert was giving opinions without having all the necessary information, and defendants relied on defense expert being the only witness who had compared the prior MRI and the MRI conducted after the accident at issue in the case — Prejudice also arose from the fact that defendants had to confront undisclosed additional testimony from plaintiff’s expert regarding the comparability of the two different MRIs — Prejudice from a mid-trial medical examination is not merely due to the nature of the new and undisclosed testimony, but also a result of the surprised party’s inability to counter the new testimony — The time for development of new testimony is long past after opening statements unless extraordinary circumstances exist

44 Fla. L. Weekly D1789a Torts — Automobile accident — Discovery — Experts — Undisclosed testimony — Trial court abused its discretion in allowing plaintiff’s expert to testify for the first time at trial about a prior MRI that plaintiff’s expert was not shown until well after discovery deadlines expired — Defendants were prejudiced by Read More »

Filed Under: Articles

November 16, 2018 by Jennifer Kennedy

Torts — Breach of fiduciary duty — Negligence — Unauthorized release of medical records — Trial court erred in holding that plaintiff could not bring a claim for breach of fiduciary duty based on defendant’s unauthorized disclosure of plaintiff’s medical records where the requirement of doctor-patient confidentiality creates a relation of trust and confidence between the parties giving rise to a fiduciary duty, the breach of which is actionable in tort — Error to grant summary judgment based on determination that plaintiff failed to show a causal link between the negligent act and plaintiff’s injury where issue of causation should have been submitted to a jury because plaintiff submitted a reasonable theory that defendant’s release of medical information to plaintiff’s employer resulted in his termination for psychiatric reasons

43 Fla. L. Weekly D2505b Torts — Breach of fiduciary duty — Negligence — Unauthorized release of medical records — Trial court erred in holding that plaintiff could not bring a claim for breach of fiduciary duty based on defendant’s unauthorized disclosure of plaintiff’s medical records where the requirement of doctor-patient confidentiality creates a relation Read More »

Filed Under: Articles

May 17, 2018 by Jennifer Kennedy

Insurance — Homeowners — Water intrusion into home caused by septic tank backup — Trial court did not err in entering final summary judgment for insurer based on conclusion that insureds failed to overcome presumption that their failure to timely report claim had prejudiced insurer’s investigation — Although there may have been disputed issues of fact as to whether insurer was prejudiced in determining cause of loss, facts, even as presented by insured’s adjuster and engineer, showed that insurer would be prejudiced by passage of time in investigating extent of loss, and thus, the cost of repair

43 Fla. L. Weekly D1116a Insurance — Homeowners — Water intrusion into home caused by septic tank backup — Trial court did not err in entering final summary judgment for insurer based on conclusion that insureds failed to overcome presumption that their failure to timely report claim had prejudiced insurer’s investigation — Although there may Read More »

Filed Under: Articles

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Recent Posts

  • Insurance — Homeowners — Attorney’s fees — Trial court erred in awarding attorney’s fees and costs in favor of insureds where filing of lawsuit was not a necessary catalyst to resolve dispute — Where insurer admitted coverage for damage to interior of home, but denied coverage for damage to roof, the dispute over cause of loss to roof was an amount of loss issue for appraisers, not a coverage issue for court — Where insurer demanded appraisal prior to filing of lawsuit by insured, and indicated that it would repair any damage awarded in appraisal, the filing of lawsuit was not a necessary catalyst to resolve dispute over roof damage
  • Insurance — Commercial liability — Exclusions — Assault and battery — Insurer had no duty to defend insured in action alleging injury arising out of assault and battery on insured’s premises where policy contained endorsement excluding coverage for injury arising out of or resulting from assault or battery
  • Insurance — Homeowners — Appraisal — Assignees — No error in finding that appraisal provision of insured’s homeowner’s policy applied to insured’s assignee and granting insurer’s motion to compel appraisal — Policy did not classify appraisal as a duty of the insured — Assignee received an assignment that entitled it to receipt of payment from insurer, and concomitant with that right was its duty to comply with the conditions of the contract that afforded it payment
  • Insurance — Homeowners — Water damage — Post-loss obligations — Sworn proof of loss — Trial court erred in entering summary judgment in favor of insurer after finding that insureds had forfeited their policy coverage for failure to provide a sworn proof of loss — Policy did not eliminate duty of insured to provide sworn proof of loss where insurer opted to repair — However, because insureds complied to some extent with policy requirements, and policy required insurer to prove it was prejudiced by insureds’ failure to provide sworn proof of loss, material issues of fact remain
  • Insurance — Homeowners — Watercraft exclusion — No error in determining that watercraft exclusion in the insureds’ homeowners’ insurance policy precluded coverage for injuries sustained by a third party in a boating accident that occurred when the insured son, who had permission to use the boat from the insured father, allowed another third party to pilot the boat while intoxicated — The only applicable exception to the watercraft exclusion unambiguously states that the watercraft exclusion does not apply if the outboard engine or motor is not owned by an insured, and the boat and engine in this case were owned by the insured father — Severability clause, which provides that the policy “applies separately to each insured,” did not render watercraft exclusion ambiguous — Exceptions to the watercraft exclusion are not dependent on the insured who seeks coverage, but on the nature of the watercraft at issue

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