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

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Torts — Premises liability — Injuries sustained by diving into private residential swimming pool — Under specific combination of circumstances, trial court erred by entering summary judgment in favor of pool owner on ground that owner owed no duty of care to warn of dangerous condition because pool constituted an open and obvious danger — Triable issue of fact existed as to whether pool and pool area created hidden danger or trap that could give rise to duty of care on part of landowner — Plaintiff asserted various attendant circumstances that allegedly prevented him from properly discerning pool depth before diving in, including unconventional design of pool, which was shallow at both ends and deepest in the middle; lack of lighting and signage; and placement of planters leading defendant to believe that the pool had a conventional deep end sufficient for diving

47 Fla. L. Weekly D1163a ALDO GABRIEL AMENTA POZANCO, Appellant, v. FJB 6501, INC., Appellee. 3rd District. Case No. 3D20-1734. L.T. Case No. 18-42369. June 1, 2022. An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge. Counsel: Wald, Gonzalez & Graff, P.A., and Estrella F. Gonzalez; Harris Appeals, P.A., and Andrew A. Read More »

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Insurance — Homeowners — Loss inspection — Video and audio recording — Trial court erred by ruling that insurance policy did not permit insureds to video and audio record insurer’s agent’s inspection of a property loss where policy was silent as to video or audio recording — Insurance adjuster did not have a legitimate expectation of privacy while inspecting insureds’ home

47 Fla. L. Weekly D1178a RYAN D. GESTEN and ANDREA GESTEN, Appellants, v. AMERICAN STRATEGIC INSURANCE CORP., Appellee. 4th District. Case No. 4D21-1851. June 1, 2022. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Joseph George Marx, Judge; L.T. Case No. 502019CA015181XXXXMB. Counsel: Samuel Alexander of Alexander Appellate Law, P.A., Read More »

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Insurance — Homeowners — Hurricane damage — Supplemental claims — Accord and satisfaction — Trial court erred by denying insured’s motion for directed verdict and subsequent motion for judgment notwithstanding verdict after jury returned verdict finding that, while the insureds had a supplemental claim for damage discovered after their acceptance of insurer’s check, the supplemental claim was barred by accord and satisfaction — At the time insurer sent check claiming to be “full and final payment” in accord with “claim settlement,” the only damages of which the parties were aware were those included in initial claim and, as such, those were the only damages adjusted by the insurer at that time — Neither scope of repairs document, claim settlement letter, check, nor check stub referenced any of the damages which were subject of supplemental claim — Delivery of check was no more than what insurer was contractually obligated to do having chosen to pay rather than repair, and there being no challenge to amount tendered — Under no view could language on check evince an intention to settle future, unknown supplemental claims

47 Fla. L. Weekly D1198d RICHARD LEMON AND LEANNE LEMON, Appellants, v. PEOPLE’S TRUST INSURANCE COMPANY, Appellee. 5th District. Case No. 5D21-2771. L.T. Case No. 2018-CA-057724-X. June 3, 2022. Appeal from the Circuit Court for Brevard County, Curt Jacobus, Judge. Counsel: Matthew G. Struble and Christine M. Deis, of Struble, P.A., Indialantic, for Appellants. Robert Read More »

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Civil procedure — Summary judgment — Trial court did not err in considering plainitff’s facts as undisputed and granting final summary judgment where defendant failed to respond as required by the amended rule 1.510 — Amended rule requires the nonmoving party to file a response — Trial court rejects argument that defendant’s prior motion for summary judgment, filed seven months prior to plaintiff’s motion, satisfied mandatory requirement — Although the trial court is permitted to consider other materials in the record when ruling on a motion for summary judgment, it is not required to do so, as the amended rule states that the court need consider only the cited materials

47 Fla. L. Weekly D1239a LLOYD S. MEISELS, P.A., d/b/a CORAL SPRINGS ANIMAL HOSPITAL, a Florida corporation, and CHRISTOPHER MCLAUGHLIN, DVM, Appellants, v. STEVEN DOBROFSKY, Appellee. 4th District. Case No. 4D21-2397. June 8, 2022. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County; John Hurley, Judge; L.T. Case No. CONO18-008000. Counsel: Victor Read More »

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Civil procedure — Dismissal — Trial court abused its discretion by dismissing first amended complaint with prejudice without affording plaintiff an opportunity to amend where plaintiff had not abused privilege to amend, record supports conclusion that allowing amendment would not prejudice defendant, and proposed amendments were not futile

47 Fla. L. Weekly D1252a ARNOLD J. HARRISON, individually and on behalf of R.H. and all those similarly situated, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE GROUP INSURANCE and BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., a Florida not for profit corporation, Appellees. 1st District. Case No. 1D20-101. June 8, 2022. On Read More »

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