47 Fla. L. Weekly D966a ROBERT McKINLEY, Appellant, v. BOB GUALTIERI, in his official capacity as Sheriff of Pinellas County, Florida, Appellee. 2nd District. Case No. 2D20-3156. May 4, 2022. Appeal from the Circuit Court for Pinellas County; Thomas Ramsberger, Judge. Counsel: Samuel Alexander of Alexander Appellate Law P.A., Deland, for Appellant. Nicole E. Durkin, Read More »
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Workers’ compensation — Attorney’s fees — Judge of compensation claims erred by denying entitlement to employer/carrier-paid attorney’s fees for securing increase in claimant’s average weekly wage based on finding that no actual or real benefit was secured — Although claimant had received disability benefits since the date of accident at the maximum compensation rate, the AWW adjustment increased the 80% threshold for temporary partial disability entitlement — AWW adjustment could also affect potential offsets if claimant receives federal disability benefits — Denial of fee entitlement based on finding that AWW increase was smaller than what claimant sought was also erroneous — An exact match between the claim and the award is not required
47 Fla. L. Weekly D1006a JOSEPH GUERRERA, Appellant, v. BECTON DICKINSON & CO. and SEDGWICK CMS, Appellees. 1st District. Case No. 1D21-1788. May 4, 2022. On appeal from an order of the Office of the Judges of Compensation Claims. Mark A. Massey, Judge. Date of Accident: March 6, 2018. Counsel: Kevin R. Gallagher of Gallagher Read More »
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 »
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 »
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 »