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

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Insurance — Homeowners — Hurricane or windstorm loss — Coverage — Concealment or fraud — Post-loss misrepresentations — No error in denying insurer’s motion for directed verdict arguing that coverage was voided because insureds provided a sworn proof of loss based on an inflated estimate to repair the roof where there was conflicting evidence on issues of intent and materiality — Although insurer failed to plead with specificity that insureds violated “Concealment or Fraud” provision of policy by submitting sworn proof loss based on material misrepresentation, the issue was tried by consent — “Concealment or Fraud” provision is ambiguous and must be read in light most favorable to insureds — For post-loss conduct, the policy is read as requiring proof of knowing or intentional fraudulent conduct by the insureds to trigger application of “Concealment or Fraud” provision to void the policy — Mere overvaluation is not, in the absence of fraud, such a misrepresentation as will void the policy — Discussion of U.S. Fire Insurance Co. v. Dickerson, Universal Property & Casualty Insurance Co. v. Johnson, and Mezadieu v. Safepoint Insurance Co. — A reasonable jury could have concluded that the insureds did not make any material false statements in connection with the sworn proof of loss — While a statement as to value is ordinarily material, a reasonable jury could have concluded that the high initial roofing estimate was not material because it was not likely to affect the conduct or investigation of a reasonable insurer in insurer’s position

46 Fla. L. Weekly D1267a ANCHOR PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant, v. ALEX TRIF and GEORGE TRIF, Appellees. 4th District. Case No. 4D20-814. June 2, 2021. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; G. Joseph Curley, Jr., Judge; L.T. Case No. 50-2018-CA-00820-XXXX-MB. Counsel: Patrick M. Chidnese and Jessica Read More »

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Insurance — Homeowners — Water damage — Coverage — Act of nature — No error in entering summary judgment order limiting insurer’s liability for water damage resulting from rust or other corrosion of cast iron pipes under the home based on water damage exclusion endorsement which excluded coverage for water damage caused by any act of nature — Discussion of the phrase “act of nature” — Rust and corrosion fit within the definition of “act of nature” — The phrase “act of nature” does not require an uncontrollable or unpreventable event

46 Fla. L. Weekly D1286a GENE DODGE and KATHLEEN DODGE, Appellants, v. PEOPLE’S TRUST INSURANCE COMPANY, Appellee. 4th District. Case No. 4D20-1199. June 2, 2021. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Nicholas R. Lopane, Judge; L.T. Case No. CACE-18-017062. Counsel: Mark A. Nation of The Nation Law Firm, LLP, Read More »

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Torts — Premises liability — Slip and fall — Constructive knowledge of dangerous condition — Stacking inferences — Directed verdict — Error to deny defendant’s motion for directed verdict where plaintiff failed to present sufficient evidence that foreign substance was on the floor where she fell, or that defendant knew about it if such a substance existed — Directed verdict should issue for a defendant if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the exclusion of all other reasonable inferences, but then stacks further inferences upon it to establish causation — Main inference underlying the plaintiff’s case, that plaintiff slipped on an employee-caused wet spot, cannot be established to the exclusion of other reasonable inferences, and it cannot support additional inferences to establish her case — It is just as plausible and reasonable to infer that no liquid was on the floor and that the wetness plaintiff perceived came from her own flip-flops and clothes after walking into defendant’s premises out of a rainstorm

46 Fla. L. Weekly D1258a TALLAHASSEE MEDICAL CENTER, INC. d/b/a Capital Regional Medical Center, Appellant, v. STEPHANIE KEMP, Appellee. 1st District. Case No. 1D19-2437. June 1, 2021. On appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge. Counsel: Daniel Nordby and Amber Stoner Nunnally of Shutts & Bowen LLP, Tallahassee, for Appellant. Read More »

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Torts — Automobile accident — Rear-end collision — Evidence — Surveillance video — Discovery — Failure to comply — Trial court abused its discretion in allowing introduction of surveillance video and testimony of investigator who recorded video where neither video nor investigator were disclosed to defendant until three business days prior to trial — New trial required where trial court admitted evidence without considering and analyzing factors set forth by supreme court in Binger v. King Pest Control and without making appropriate findings, including whether plaintiff was prejudiced by late disclosure

46 Fla. L. Weekly D1304b ANGEL MONTERO, Appellant, v. RAUL CORZO, et al., Appellees. 3rd District. Case No. 3D20-406. L.T. Case No. 17-104. June 2, 2021. An Appeal from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge. Counsel: Fischer Redavid PLLC, and Jordan S. Redavid (Hollywood), for appellant. Walton Lantaff Schroeder & Carson LLP, Read More »

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Insurance — Appraisal — Waiver — Participation in litigation — Motion for a more definitive statement — Trial court erred in denying insurer’s motion to compel appraisal based on conclusion that insurer had waived its right to compel an appraisal by actively litigating the case — Insurer’s filing of a motion for more definitive statement and a motion to dismiss did not constitute participation in litigation so as to be inconsistent with insurer’s right to compel appraisal — Discussion of motions for a more definitive statement and when they are appropriate — Insurer was entirely justified in filing motion for more definitive statement before filing an answer where complaint was so ambiguous that insurer could not have reasonably been required to prepare a responsive pleading — Nothing in the record establishes that insurer knowingly waived or engaged in conduct that implies it knowingly waived its right to appraisal — Record reflected deliberate action to evaluate the nature of the claims and then invoke appraisal at the first reasonable opportunity

46 Fla. L. Weekly D1255a CASTLE KEY INSURANCE COMPANY, Appellant, v. WOODEN FAMILY TRUST, Appellee. 1st District. Case No. 1D20-1373. June 1, 2021. On appeal from the Circuit Court for Bay County. John L. Fishel, II, Judge. Counsel: Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg, for Appellant. Samuel Alexander of Read More »

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