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

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Appeals — Certiorari — Discovery orders — Privileged documents — Work product — Wrongful death — Trial court departed from essential requirements of law by requiring defendant to produce root cause analysis and incident report after finding that these reports were prepared in ordinary course of business and constitute non-privileged, discoverable business records or, alternatively, that any work-product privilege was waived because of corporate representative’s use of the reports at her deposition — Fact that defendant required as a matter of practice that records be created after a “sentinel event” supports contention that the documents were created in anticipation of litigation — With respect to conclusory determination that any privilege was waived by corporate representative’s reference to documents during her deposition, on remand, trial court to conduct in camera inspection of video deposition to determine whether references to documents were such that privilege was waived and, if so, to determine with specificity the extent of the waiver — Whether reports should be produced regardless of privilege because of relevance and need for the documents and undue hardship in obtaining underlying information from other sources was apparently not addressed by trial court — To extent trial court on remand determines that some or all of records are protected from discovery, evidentiary hearing will be required to determine whether the reports contain information that is unobtainable elsewhere without undue hardship

46 Fla. L. Weekly D637a ONWARD LIVING RECOVERY COMMUNITY, LLC, et al., Petitioners, v. CARLOS MORMENEO and MONICA TOBON, etc., Respondents. 3rd District. Case No. 3D20-1504. L.T. Case No. 20-11087. March 24, 2021. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Veronica A. Diaz, Judge. Counsel: Cole, Scott & Kissane, P.A., and […]

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Wrongful death — Medical malpractice — Hospitals — Jurors — Peremptory challenge — Racial discrimination — Trial court did not abuse discretion by finding that defendant’s race-neutral explanation for challenge of African-American was not genuine due to an impermissible pattern of seeking to excuse potential jurors based on race — New trial — Court did not abuse discretion by finding that violations of pretrial stipulation did not warrant granting of new trial where stipulation not to reference licensed physicians who cared for decedent was violated numerous times by both parties — Court did not err in refusing to grant new trial after inadmissible and prejudicial testimony was introduced where testimony was not prejudicial enough to vitiate entire trial

46 Fla. L. Weekly D633a HIALEAH HOSPITAL, INC., Appellant, v. JOSHUA MISIUS HAYES-BOURSIQUOT, etc., Appellee. 3rd District. Case No. 3D20-0050. L.T. Case No. 15-24325. March 24, 2021. An Appeal from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge. Counsel: Falk, Waas, Hernandez, Solomon, Mendlestein & Davis P.A., and Glenn P. Falk and Scott L. […]

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Attorney’s fees — Hours — Reduction — Trial court’s failure to reduce fees for hours billed was arbitrary and unsupported where experts from both parties provided testimony that reduction was necessary, but trial court ignored that recommendation without explanation — Remand for reduction of number of billable hours and recalculation of Lodestar amount

46 Fla. L. Weekly D631a UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. CARMEN CELESTRIN, et al., Appellees. 3rd District. Case No. 3D20-541. L.T. Case No. 18-6008. March 24, 2021. An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge. Counsel: Russo Appellate Firm, P.A., Elizabeth K. Russo and Paulo R. Lima, […]

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Insurance — Proposal for settlement — Timeliness — Attorney’s fees — Proposal for settlement served on a second plaintiff eleven days after she was added to the case through the filing of an amended complaint was premature, in violation of rule 1.442(b), and was unenforceable — The critical date for determining whether the proposal for settlement served on the second plaintiff was timely was the date that second plaintiff commenced the action, which is the date on which she became a plaintiff — Order reversed to the extent that trial court found that defendant was entitled to attorney’s fees and costs based on proposal for settlement served on second plaintiff

46 Fla. L. Weekly D584c GENET ARIZONE and VANA SIMON, Appellants, v. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC., Appellee. 2nd District. Case No. 2D18-1116. Opinion filed March 17, 2021. Appeal from the Circuit Court for Lee County; Keith R. Kyle, Judge. Counsel: Erin M. Berger and Melissa A. Giasi of Giasi Law, P.A., […]

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Insurance — Homeowners — Appraisal — Trial court erred in denying insurer’s motion to compel appraisal — Because insurer did not wholly deny coverage, appraisal was appropriate and should not have been denied — Court rejects insured’s waiver and ripeness arguments — Insurer did all it needed to do before demanding appraisal and did not act inconsistently with its appraisal right

46 Fla. L. Weekly D582a CASTLE KEY INSURANCE COMPANY, Appellant, v. MARK FISCHER, Appellee. 1st District. Case No. 1D20-1621. March 16, 2021. On appeal from the Circuit Court for Bay County. Frances S. King, Judge. Counsel: Scot E. Samis of Traub Lieberman Straus & Shrewsberry LLP, St. Petersburg; David Molhem of Molhem & Fraley, P.A., […]

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