46 Fla. L. Weekly D540a FLANIA BELT, Appellant, v. USAA CASUALTY INSURANCE COMPANY Appellee. 4th District. Case No. 4D20-339. March 10, 2021. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No. 50-2016-CA-010153-XXXX-MB. Counsel: William T. Viergever of Lytal Reiter Smith Ivey & Fronrath, West Palm Read More »
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Insurance — Homeowners — Insured’s post-loss obligations — Failure to attend examination under oath — Trial court erred by granting insurer’s motion for directed verdict on issue of whether insured materially breached insurance contract by failing to attend EUO — For an insurer to establish a coverage defense based upon an insured’s failure to satisfy post-loss obligations such that the insured forfeits coverage under the policy, insurer must plead and prove that insured materially breached a post-loss policy provision — If insurer establishes such a material breach by insured, burden then shifts to insured to prove that any breach did not prejudice insurer — New trial required at which factfinder can determine whether insurer proved that insured’s failure to attend EUO was a material breach of the contract and, if so, whether insured then proved that this material breach did not prejudice insurer
46 Fla. L. Weekly D528a CELERINA NUNEZ, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 3rd District. Case No. 3D19-1614. L.T. Case Nos. 16-1435 & 16-1284. March 10, 2021. An Appeal from the Circuit Court for Miami-Dade County, Michael A. Hanzman, Judge. Counsel: Giasi Law, P.A., and Melissa A. Giasi and Erin M. Berger Read More »
Torts — Automobile accident — Dram Shop Act — Arbitration — Damages — Setoff — Trial court did not err by setting off against the arbitration award the amounts plaintiff recovered pursuant to settlement agreements with two derivatively liable establishments who served defendant alcohol on the day of the accident — Enforcement of the statutory setoff requirement after the deadline for the parties to request a trial de novo neither abrogated the arbitration statute nor unduly prejudiced plaintiff — While the trial court lacked discretion to alter the decision of the arbitrator, the decision of the arbitrator in this case did not encompass the liability of released third parties whose settlement payments defendant had a statutory right to set off from the award entered against him for the same damages — Additionally, while arbitration statute does require the trial court to enter an executable judgment in accordance with the arbitrator’s decision, the statutory text does not support plaintiff’s insinuation that there is no adjudicatory work to be done by the trial court after it receives the decision — Court rejects argument that plaintiff was improperly deprived of notice that arbitration award could be reduced by future settlement with third party at the time he was required to make the decision whether or not to request a trial because notice is provided by two separate statutes that require a trial court to set off the amount of settlements paid by released parties — Plaintiff was not prejudiced in his ability to present his case
46 Fla. L. Weekly D521a KENNETH IRVIN, JR., Appellant, v. LJ’S PACKAGE & LOUNGE INC. d/b/a LJ’S LOUNGE and KENNETH R. SALLADAY, Appellees. 2nd District. Case No. 2D19-2889. March 10, 2021. Appeal from the Circuit Court for Lee County; Alane Laboda, Judge. Counsel: Dan R. Stengle of Associates & Bruce L. Scheiner, Fort Myers, for Read More »
Insurance — Bad faith — Civil remedy notice — Deficient notice — No error in dismissing complaint against insurer based on finding that insured’s civil remedy notice, which cited thirty-five statutory provisions and listed nearly every provision in insurance policy, failed to satisfy statutory requirement that an insured state with specificity the policy language and statutory provisions at issue — Court rejects argument that notice was sufficient because the Department of Financial Services has statutory authority to return deficient notices but failed to do so — Department’s discretionary grant of authority did not determine the legality of the notice, nor is there evidence that the department even considered the issue — Even if department made specific determination about notice’s legality, the courts must independently review the notice
46 Fla. L. Weekly D486d JUNIOR JULIEN, Appellant, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 4th District. Case No. 4D19-2763. March 3, 2021. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. CACE-18-017983 (13). Counsel: George A. Vaka and Nancy A. Lauten of Vaka Read More »
Torts — Discovery — Denial — Judicial estoppel — Attorney-client privilege — Appeals — Certiorari — Parties stipulating in federal court that no further discovery was required in order to resolve defendant’s summary judgment motion asserting that plaintiff’s claims against her had been settled — Trial court departed from essential requirements of the law by relying on judicial estoppel to prohibit parties from engaging in any discovery related to defendant’s affirmative defense that the underlying personal injury claims were settled prior to suit being filed — In judicial proceedings, a party is not estopped from asserting a later inconsistent position unless the party’s initial position was successfully maintained — Defendant did not successfully maintain position that all facts had been successfully developed and presented where, although both parties stipulated that no further discovery was needed, federal judge disagreed by finding too many unanswered factual questions to permit entry of summary judgment in defendant’s favor — A party such as defendant is not estopped from relying upon such an adverse ruling and asserting any position consistent with that ruling — Furthermore, trial court erroneously treated federal court’s denial of defendant’s motion for summary judgment as though it was a binding, substantive ruling — Because federal court ultimately determined that it lacked subject matter jurisdiction, it could not make binding, substantive rulings — Plaintiff cannot demonstrate that he was prejudiced by the parties’ stipulation — Trial court also departed from essential requirements of the law by applying attorney-client privilege without consideration of its waiver as a basis for banning discovery into settlement defense — Prohibiting all discovery on settlement issue eviscerated defendant’s settlement defense, resulting in irreparable harm
46 Fla. L. Weekly D507b ALEYSSA MARIE ARROYO MARRERO, Petitioner, v. TERENCE REA, Respondent. 5th District. Case No. 5D20-1612. Opinion filed March 5, 2021. Petition for Certiorari Review of Order from the Circuit Court for Orange County, Kevin B. Weiss, Judge. Counsel: Sharon C. Degnan, of Kubicki Draper, Orlando, for Petitioner. Brian J. Lee, of Read More »