45 Fla. L. Weekly D2105a Insurance — Coverage — Post-loss obligations — Notice of claims — Discovery — Privileged information — Waiver — Trial court did not depart form essential requirements of the law by allowing insurer to depose claims adjuster and insurer’s counsel on topics relevant to notice where trial court appropriately limited discovery […]
Articles
Insurance — Uninsured motorist — Bad faith — Evidence — Settlement offers — Mediation communications — New trial — Loss of consortium — No error in dismissing insured wife’s loss of consortium claim where wife failed to file a civil remedy notice — Trial court erred in admitting insurer’s activity log which memorialized the insureds’ settlement offer at mediation — Activity log note containing insureds’ mediation offer was irrelevant where it had nothing to do with whether insurer acted in bad faith when it failed to tender policy limits until after insured husband’s CRN had expired — Note was inadmissible pursuant to section 90.408 where note reflected settlement negotiations between the same parties involved in the bad faith trial — Additionally, activity log note was inadmissible because it was a privileged mediation communication — Although insureds and the insurer were parties to the mediation, activity log note was published to a party outside the ambit of those privileged to see it under section 44.405 when it was introduced into evidence and published to the jury — Remand for new trial
45 Fla. L. Weekly D2121b Insurance — Uninsured motorist — Bad faith — Evidence — Settlement offers — Mediation communications — New trial — Loss of consortium — No error in dismissing insured wife’s loss of consortium claim where wife failed to file a civil remedy notice — Trial court erred in admitting insurer’s activity […]
Insurance — Contractors — Coverage — Construction defects — Declaratory judgment — Issue preclusion — Insurer that issued contractors policy of insurance to subcontractor appealed both the final judgment entered in favor of plaintiff homeowner and the district court’s order denying insurer’s motion in limine, which sought to bar homeowner as assignee of contractor from presenting evidence of when damages to home manifested based on doctrine of issue preclusion — When determining the preclusive effect of an earlier judgment rendered by a federal court exercising diversity jurisdiction, federal common law adopts the rules of issue preclusion applied by the State in which the rendering court sits — District court was required to apply Alabama’s rules of issue preclusion to determine the preclusive effect of a judgment entered by a federal court exercising diversity jurisdiction on a nonparty to the earlier federal action — District court applied incorrect legal standard in determining whether homeowner and homeowner as assignee of contractor were in privity in prior declaratory judgment action where court applied federal rules of nonparty issue preclusion in determining preclusive effect of prior declaratory judgment in which the federal court exercised diversity jurisdiction — Because the district court failed to apply Alabama’s rule of issue preclusion, specifically the application of privity to justify nonparty issue preclusion, and instead applied a federal rule of issue preclusion that is not substantively similar to Alabama’s rule on nonparty issue preclusion, the court abused its discretion when it denied insurer’s motion in limine — Final judgment in favor of plaintiff must be vacated and case remanded for district court to apply Alabama’s rules of issue preclusion to determine issue of privity in first instance
28 Fla. L. Weekly Fed. C1604a Insurance — Contractors — Coverage — Construction defects — Declaratory judgment — Issue preclusion — Insurer that issued contractors policy of insurance to subcontractor appealed both the final judgment entered in favor of plaintiff homeowner and the district court’s order denying insurer’s motion in limine, which sought to bar […]
Torts — Contracts — Arbitration — Contracts of minors — Release and waiver of liability containing arbitration agreement which was fraudulently executed by minor in order to enter trampoline facility is enforceable — Minor cannot use infancy defense to avoid a contract where minor procured the contract by fraud — Defendant facility had no duty to investigate to discover fraud — Trial court erred in finding that release and waiver was unconscionable and unenforceable and in denying motion to compel arbitration
45 Fla. L. Weekly D1911a Torts — Contracts — Arbitration — Contracts of minors — Release and waiver of liability containing arbitration agreement which was fraudulently executed by minor in order to enter trampoline facility is enforceable — Minor cannot use infancy defense to avoid a contract where minor procured the contract by fraud — […]
Limitation of actions — Homeowners association’s action to foreclose lien for unpaid assessments — Error to enter summary judgment for defendants on basis of statute of limitations defense where statute of limitations defense was not raised in defendants’ pleadings, but was first raised in motion for summary judgment — Statute of limitations defense is one of enumerated affirmative defenses under rule 1.110(d), which must be affirmatively set forth in a pleading or it is deemed waived
45 Fla. L. Weekly D1882a Limitation of actions — Homeowners association’s action to foreclose lien for unpaid assessments — Error to enter summary judgment for defendants on basis of statute of limitations defense where statute of limitations defense was not raised in defendants’ pleadings, but was first raised in motion for summary judgment — Statute […]