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

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Insurance — Garage liability — Duty to defend or indemnify — Additional insured endorsement — Exclusions — Bodily injury to employee arising out of and in course of employment by insured — Employer-employee relationship — Insurer’s action for declaration that it did not have duty to defend or indemnify its insured against a claimant’s allegations that while claimant was performing work under insured’s orders, at the direction of the insured, and on a vessel which was under the insured’s ownership or control, he slipped and fell from the top of the vessel’s tower/ladder because of the shoe coverings insured required him to wear — Insurer not entitled to summary judgment in its favor on duty to defend or indemnify insured where reasonable jury could find either that the claimant was a statutory or actual employee of the insured or that he was an independent contractor — Discussion of duty to defend or indemnify under Florida law and multi-factor test applicable to determining whether an individual is an employee or an independent contractor

30 Fla. L. Weekly Fed. D1a SOUTHERN OWNERS INSURANCE COMPANY, Plaintiff, v. GALATI YACHT SALES, LLC, JEFFCO MARINE SERVICES, INC., and JEFFERSON FORAKER, Defendants. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:21-cv-2567-VMC-MRM. January 17, 2023. Virginia M. Hernandez Covington, Judge. ORDERThis matter comes before the Court upon consideration of Plaintiff Southern […]

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Torts — Counterclaims — Amendment — Punitive damages — Intentional misconduct — Counterclaims alleging that plaintiff and his attorney had surreptitiously and illegally obtained defendants’ DNA to compare it to DNA obtained from hate mail which was sent to plaintiff and formed the basis for plaintiff’s underlying complaint — Trial court erred by granting defendants’ motion to amend their counterclaims to seek punitive damages — Discussion of substantive and procedural requirements for motions to amend seeking punitive damages — Defendants’ evidentiary showing was insufficient where evidentiary proffers were ambiguous in terms of establishing specific intent by plaintiff and his attorney to knowingly engage in wrongful conduct — Even conceding that defendants’ proffer demonstrated evidence that could lead a jury to conclude that plaintiff and his attorney specifically intended to engage in acts constituting misdemeanors by testing defendant’s DNA and disclosing the results, plaintiff’s conduct in testing and reporting DNA results, under the circumstances of the hate mail campaign leading to a law enforcement investigation, did not meet the threshold of reprehensible or outrageous conduct — Additionally, evidentiary proffer was insufficient to show that plaintiff intentionally and wrongfully disseminated DNA test results linking one of the defendants to the hate mail while ignoring that the DNA sample was possibly compromised or that plaintiff’s disgruntled prior employee could have been the author of the hate mail — Because punitive damages claim against plaintiff’s attorney was improper, trial court erred in allowing counterclaims to be amended to seek punitive damages against attorney’s employer — Furthermore, defendants failed to allege or proffer evidence showing demonstrating that attorney or manager to whom attorney reported held a position as a corporate policymaker, or that employer actively and knowingly participated in intentional misconduct to merit punitive damages under section 768.72(3)(a)

48 Fla. L. Weekly D1903a FEDERAL INSURANCE COMPANY, HAROLD PEERENBOOM, and WILLIAM MARVIN DOUBERLEY, Appellants, v. ISAAC “IKE” PERLMUTTER and LAURA PERLMUTTER, Appellees. 4th District. Case Nos. 4D2022-1558, 4D2022-1560, & 4D2022-1562. September 27, 2023. Consolidated appeals of nonfinal orders from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Gerard Joseph Curley, Judge; […]

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Insurance — Homeowners — Water damage — Coverage — Amount of loss — Evidence — Trial court erred in denying insurer’s motion in limine to exclude homeowner’s estimate that was based on replacement cost rather than actual cash value, which was the correct measure of damages — New trial required where erroneous denial of motion in limine to exclude estimate that was not based on proper measure of damages resulted in homeowner’s failure to submit evidence of correct measure of damages

48 Fla. L. Weekly D1941a CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. MAGDA V. SALAZAR, Appellee. 3rd District. Case No. 3D20-0367. L.T. Case No. 17-2009. October 4, 2023. An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge. Counsel: Butler Weihmuller Katz Craig LLP., and J. Pablo Caceres (Tampa), for appellant. Giasi Law, P.A., […]

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Venue — Improper venue — Dismissal — Expiration of statute of limitationsNORA PEREZ SALAZAR, etc., Appellant, v. PREMIER AIR CENTER, LLC, etc., et al., Appellees. 3rd District. Case Nos. 3D23-516 & 3D23-517. L.T. Case No. 20-21227. September 20, 2023. Appeal from the Circuit Court for Miami-Dade County, Carlos Guzman, Judge. Counsel: Jimenez, Hart & Mazzitelli, LLP, and Gabriel D. Mazzitelli; Armas Bertran Zincone, and J. Alfredo Armas; MSP Recovery Law, and John H. Ruiz and Alexis Fernandez, for appellant. Wicker Smith O’Hara McCoy & Ford, P.A., and Michael R. D’Lugo (Orlando), for appellee Premier Air Center, LLC d/b/a West Star Aviation, LLC.

48 Fla. L. Weekly D1873b (Before LOGUE, C.J., and EMAS and BOKOR, JJ.) ON CONFESSION OF ERROR(LOGUE, C.J.) Based upon Premier Air Center, LLC d/b/a West Star Aviation, LLC’s commendable confession of error, and our review of the record, we reverse the trial court’s order dismissing the claims against West Star in the underlying complaint […]

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Condominiums — Dispute between unit owners and between unit owner and association — Breach of governing documents — Breach of statutory duty — Limitation of actions — Action brought against association and neighboring unit owner stemming from leak which caused water damage and mold on plaintiff unit owners’ ceilings and walls — No error in granting summary judgment in favor of defendants based on determination that breach of declaration and breach of statutory duty claims were time-barred where plaintiffs testified that there had been prior leaks and that they had last seen water leaking in 2013 when plaintiffs complained to the association which undertook and completed some repairs — Continuing tort doctrine was inapplicable where plaintiffs failed show evidence of ongoing nonperformance regarding previous leaks to warrant application of the exception — Because plaintiffs failed to provide evidence to support the occurrence of a new leak within the limitations period, summary judgment was proper — Plaintiffs failed to preserve argument that summary judgment in favor of defendant unit owners should be reversed because defendant unit owners never filed a motion for summary judgment

48 Fla. L. Weekly D1876a SLAVICA RAFFAY and ATTILA RAFFAY, Appellants, v. LONGWOOD HOUSE CONDOMINIUM ASSOCIATION, INC., et al., Appellees. 3rd District. Case No. 3D22-1911. L.T. Case No. 19-22104. September 20, 2023. An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge. Counsel: Gulisano Law, PLLC, and Michael Gulisano (Boca Raton), for […]

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