47 Fla. L. Weekly D1295b THE KIDWELL GROUP, LLC, d/b/a AIR QUALITY ASSESSORS OF FLORIDA a/a/o BEN KIVOVITZ, Appellant, v. UNITED PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. 4th District. Case No. 4D21-2843. June 15, 2022. Appeal from the County Court for the Fifteenth Judicial Circuit, Palm Beach County; Sandra Bosso-Pardo, Judge; L.T. Case No. 50-2021-SC-001729-MB. […]
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Insurance — Post-loss obligation — Failure to comply — Prejudice — “Suit Against Us” provision of policy does not trump policy’s own requirement that insured’s noncompliance be prejudicial to the insurer
47 Fla. L. Weekly D1295a SHARON GODFREY, Appellant, v. PEOPLE’S TRUST INSURANCE COMPANY, Appellee. 4th District. Case No. 4D21-901. June 15, 2022. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William Haury, Jr., Judge; L.T. Case No. CACE18-024020. Counsel: Jose P. Font and Christopher Herrera of Font & Nelson, PLLC, Fort […]
Torts — Automobile accident — Third party’s liability — Product liability — Aerosol propellant — Difluoroethane — Strict liability — Negligence — Proximate cause — Action brought against manufacturers, distributors, and sellers of a compressed air duster containing DFE which was inhaled by the driver of the vehicle that injured plaintiff — No error in granting summary judgment in favor of defendants on claim of strict liability for design defect which alleged that the product was not properly designed because the added “bitterant” either did not properly mix with the DFE or did not effectively deter driver’s intentional misuse — Fact that driver continued misusing the product, whether because the bitterant had the potential for uneven disbursement or because of her addiction, does not plausibly suggest that product the driver purchased was not manufactured properly — Defendants are not strictly liable when a third party’s injury results from a consumer’s unintended and illegal use of a product — No error in granting summary judgment in favor of defendants on claim of strict liability for failure to warn — While product’s warning label did not prevent driver’s misuse, it was nonetheless sufficient to warn a reasonable person not to consume it — Defendants had no further duty to warn driver or to specifically warn that altering her mental state while driving could lead to an accident and cause injury — Trial court did not err in granting summary judgment on plaintiff’s negligence claim base on finding that driver was the sole superseding proximate cause of the accident and resulting injuries — Discussion of DZE Corp. v. Vickers — The trial court was able to properly determine no causal link existed as a matter of law between defendants’ actions that caused the accident and plaintiff’s injury where no one disputed that driver was voluntarily impaired by her misuse of the product, and there was no special relationship between defendants and driver — The foreseeability of driver’s huffing product while driving is not a close case that would raise a question of fact for a jury to determine — Because driver’s actions were separate from those of the defendants and were neither controlled, encouraged, nor caused by them, driver’s misuse of the product was the sole proximate legal cause of both the accident and plaintiff’s resulting injuries
47 Fla. L. Weekly D1288a MICHAEL GRIECO, Appellant, v. DAIHO SANGYO, INC., AW DISTRIBUTING, INC., and WAL-MART STORES EAST, LP, Appellees. 4th District. Case Nos. 4D20-2294 and 4D20-2557. June 15, 2022. Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; James Nutt, Judge; L.T. Case No. 502012CA021342XXXMB (AO). Counsel: Sean […]
Insurance — Commercial property — Coverage — Business losses — Business interruption — Businessowners property coverage policy, providing coverage for “direct physical loss of or damage to covered property” and “actual loss of ‘business income’ ” due to the suspension of business operations in certain circumstances, does not insure against losses and expenses incurred by business as result of COVID-19 pandemic — Insured’s Covid-related expenses and losses are not covered, because the insurer agreed to provide for only physical loss of property and insured suffered no “physical loss of” property — Under Georgia law, a direct physical loss always involves a tangible change to a property, and COVID-19 did not cause tangible alteration of the insured property
29 Fla. L. Weekly Fed. C1213a HENRY’S LOUISIANA GRILL, INC., HENRY’S UPTOWN LLC, Plaintiffs-Appellants, v. ALLIED INSURANCE COMPANY OF AMERICA, Defendant-Appellee. 11th Circuit. Case No. 20-14156. June 3, 2022. Appeal from the U.S. District Court for the Northern District of Georgia (No. 1:20-cv-02939-TWT). (Before GRANT, LUCK, and ANDERSON, Circuit Judges.) (GRANT, Circuit Judge.) Since the […]
Insurance — All-risk commercial — Coverage — Business losses — Business interruption — All-risk commercial policy that provides coverage for “actual loss of business income” “due to necessary ‘suspension’ ” of business operations if the suspension is “caused by direct loss to property at premises” provides no coverage for business losses and expenses incurred by insured business as result of COVID-19 pandemic, because COVID-19 did not cause physical loss or damage to the insured’s property — Under Alabama law, “accidental physical loss or accidental physical damage” in insurance policy requires the insured to show tangible alteration to the property in order to establish coverage — Insured did not state a claim that COVID-19 caused physical damage to its property because COVID-19 does not physically alter the property it rests on, and COVID-19 particles can be removed from a surface by standard cleaning measures — If a property or surface can be cleaned and quickly restored to its previous condition, then the property has not suffered direct “accidental physical loss or accidental physical damage” such that it has been tangibly altered — Closures stemming from the pandemic do not constitute physical loss or damage under all-risk policy at issue
29 Fla. L. Weekly Fed. C1219a DUKES CLOTHING, LLC, Plaintiff-Appellant, v. THE CINCINNATI INSURANCE COMPANY, Defendant-Appellee. 11th Circuit. Case No. 21-11974. June 6, 2022. Appeal from the U.S. District Court for the Northern District of Alabama (No. 7:20-cv-00860-GMB). (Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.) (HULL, Circuit Judge.) This case presents an increasingly common question […]