45 Fla. L. Weekly D485b Insurance — Attorney’s fees — Section 57.105 sanction — Award of attorney’s fees to insured for litigating insurer’s declaratory judgment action — Although court properly awarded insured her reasonable attorney’s fees, it was error to award her an additional punitive amount equivalent to insurer’s attorney’s reasonable fees — No authority […]
Articles
Insurance — Homeowners — Water damage — Dismissal — Fraud upon the court — Trial court abused its discretion in dismissing case for fraud upon the court based on finding that evidence provided completely contradicted insureds’ position that garbage disposal under the sink caused the water damage where record does not demonstrate that insureds knowingly entered a scheme to defraud the insurer and the court — Collective inconsistencies between the insureds’ statements regarding the cause of loss and repair were not significant enough to warrant dismissal and could have been managed through impeachment and other less severe sanctions
45 Fla. L. Weekly D483a Insurance — Homeowners — Water damage — Dismissal — Fraud upon the court — Trial court abused its discretion in dismissing case for fraud upon the court based on finding that evidence provided completely contradicted insureds’ position that garbage disposal under the sink caused the water damage where record does […]
Torts — Slip and fall — Constructive notice — Summary judgment — Affidavits — Trial court exceeded its authority in disregarding entirety of affidavit submitted in opposition to defendant supermarket’s motion for summary judgment on the basis that affiant badly repudiated her prior deposition testimony — Affiant did not badly repudiate her former deposition testimony through her description of puddle’s length and disclosure of the existence of track marks and footprints leading to and from the puddle where, in her deposition, affiant was asked only about the originating source of the water and whether the puddle appeared transparent — Because puddle was arguably both expansive and subject to detectable foot traffic preceding plaintiff’s fall, a factual issue as to constructive notice precluded entry of summary judgment
45 Fla. L. Weekly D440a Torts — Slip and fall — Constructive notice — Summary judgment — Affidavits — Trial court exceeded its authority in disregarding entirety of affidavit submitted in opposition to defendant supermarket’s motion for summary judgment on the basis that affiant badly repudiated her prior deposition testimony — Affiant did not badly […]
Wrongful death — Product liability — Asbestos — Trial court did not err in denying defendant’s motion for judgment as matter of law on issue of causation — Evidence — Trial court abused discretion by excluding from evidence affidavits signed by decedent shortly before his death in support of his claims of exposure to asbestos-containing products manufactured or distributed by non-party entities — Error was not harmless — Jury instructions — Learned intermediary defense to failure to warn claim — Trial court erred in failing to include in instruction on learned intermediary defense language indicating that defendant’s duty to warn was fulfilled or discharged if it reasonably relied on an intermediary manufacturer — Court did not err in including non-party company on verdict form as Fabre defendant
45 Fla. L. Weekly D444a Wrongful death — Product liability — Asbestos — Trial court did not err in denying defendant’s motion for judgment as matter of law on issue of causation — Evidence — Trial court abused discretion by excluding from evidence affidavits signed by decedent shortly before his death in support of his […]
orts — Negligence — Premises liability — Action against condominium association, construction company, and unit owners brought by invitee who was injured while walking on edge of unfinished portion of dock — Damages — Joint and several liability — Association had nondelegable duty to maintain and repair common areas, which included dock, and its hiring of construction company to repair and replace the dock in a reasonably safe manner did not disclaim or negate this duty — Accordingly, association was jointly and severally liable to plaintiff for any portion of damages attributable to construction company for company’s breach of its duty to use reasonable care to repair and replace the dock — Trial court did not err by finding that association was not jointly and severally liable for portion of damages attributable to unit owners where complaint alleged unit owner breached duty to warn of dangerous conditions and maintain property in a safe condition, a duty that was separate and distinct from that of association — Trial court did not abuse its discretion by allowing defendants to amend pleadings to add affirmative defense that unit owners’ removal of orange mesh fence separating dock from other common areas contributed to plaintiff’s injuries — Evidence — Although trial court abused its discretion in admitting into evidence an email that implicated unit owners for improper use of condominium pool when it was closed by health department, which was relevant only to bad character or propensity, error was harmless
45 Fla. L. Weekly D448g Torts — Negligence — Premises liability — Action against condominium association, construction company, and unit owners brought by invitee who was injured while walking on edge of unfinished portion of dock — Damages — Joint and several liability — Association had nondelegable duty to maintain and repair common areas, which […]