45 Fla. L. Weekly D1151b Insurance — Homeowners — All risk policy — Concurrent cause doctrine — Where water damage to insured home was caused by water entering home through walls and windows, an excluded cause, and by water entering through door, a cause which was not excluded, trial court erred in granting directed verdict […]
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Insurance — Homeowners — Appraisal pursuant to appraisal provision in Preferred Contractor Endorsement — Waiver — Insurer did not waive right to compel appraisal by not invoking its appraisal right as an affirmative defense to insured’s breach of contract action where insurer, in the same pleading containing affirmative defenses, asserted counterclaims seeking insureds’ compliance with appraisal provision — Insurer did not waive right to compel appraisal because its counterclaim sought to void policy because of insureds’ refusal to participate in appraisal — Party will not be deemed to have waived appraisal unless party’s litigation position is inconsistent with party’s assertion of right to appraisal — Demand for appraisal was not untimely where insurer sent insureds letter demanding appraisal before it had notice of insureds’ lawsuit — Remand for trial court to reconsider insurer’s motion to compel appraisal and to determine order in which coverage issues and appraisal are determined
45 Fla. L. Weekly D1149a Insurance — Homeowners — Appraisal pursuant to appraisal provision in Preferred Contractor Endorsement — Waiver — Insurer did not waive right to compel appraisal by not invoking its appraisal right as an affirmative defense to insured’s breach of contract action where insurer, in the same pleading containing affirmative defenses, asserted […]
Wrongful death — Automobile accident — Tractor-trailer accident involving multiple vehicles and resulting in several bodily injury and wrongful death claims — Intervention — Excess insurer for employer of driver who recklessly operated tractor-trailer seeking to intervene for purpose of distributing $10, which it contends is the extent of available insurance coverage after settlement of other claims — Trial court applied proper standard when it examined whether excess insurer’s asserted interest was appropriate for intervention and did not abuse discretion by denying intervention after concluding that it was not — Excess insurer’s interest in distributing its remaining insurance proceeds was not appropriate to support intervention because it was not an interest in the matter of litigation and was not of such a direct and immediate character that insurer would gain or lose by the direct operation of the judgment — Record makes it clear that it is only the continuation of the proceeding that affects insurer because it is paying for insured’s defense pursuant to terms of policy — Discussion of two-step analysis applicable when ruling on motion to intervene
45 Fla. L. Weekly D1128b Wrongful death — Automobile accident — Tractor-trailer accident involving multiple vehicles and resulting in several bodily injury and wrongful death claims — Intervention — Excess insurer for employer of driver who recklessly operated tractor-trailer seeking to intervene for purpose of distributing $10, which it contends is the extent of available […]
Torts — Cruise ships — Maritime law — Negligence — Failure to maintain safe walkway — Failure to warn — Passenger tripping over leg of lounge chair while walking through narrow pathway on cruise ship — District court erred in granting summary judgment in favor of cruise ship on claims of negligent failure to maintain safe walkway and failure to warn of dangerous condition by concluding that condition was open and obvious and that cruise ship lacked actual and constructive notice of the hazard — In concluding that condition was open and obvious and that cruise ship lacked notice, the court failed to draw all factual inferences in favor of passenger — Duty to warn — Viewing facts in light most favorable to passenger, genuine dispute of material fact exists as to whether the dangerous condition associated with walkway was open and obvious where record supports an inference that a reasonable person in passenger’s circumstances would not have observed the chair leg obstructing her path — Genuine dispute of fact exists as to ship’s notice of the danger where there is evidence that corrective measures were taken to prevent people from tripping over lounge chairs in the walkway — Even if allegedly dangerous condition were open and obvious, that would only defeat the failure to warn claim, and would not preclude the claim for negligent failure to maintain a safe premises — Genuine dispute of material fact precludes summary judgment on negligent maintenance claim where passenger presented sufficient evidence for a reasonable jury to conclude that cruise ship negligently maintained an unsafe walkway that fell below industry standards
28 Fla. L. Weekly Fed. C1048a Torts — Cruise ships — Maritime law — Negligence — Failure to maintain safe walkway — Failure to warn — Passenger tripping over leg of lounge chair while walking through narrow pathway on cruise ship — District court erred in granting summary judgment in favor of cruise ship on […]
Insurance — Homeowners — Summary judgment — Breach of contract claim by insured against insurer — Trial court erred in denying insurer’s motion for summary judgment where insured presented no evidence of insurer’s breach of insurance contract, insurer met its initial burden of demonstrating the nonexistence of any genuine issue of material fact, and insured failed to come forward with admissible counter-evidence sufficient to reveal a genuine issue of material fact
45 Fla. L. Weekly D1091b Insurance — Homeowners — Summary judgment — Breach of contract claim by insured against insurer — Trial court erred in denying insurer’s motion for summary judgment where insured presented no evidence of insurer’s breach of insurance contract, insurer met its initial burden of demonstrating the nonexistence of any genuine issue […]