29 Fla. L. Weekly Fed. D68a CASTILLA ROOFING, INC., a/a/o, Allan Thomas, Plaintiff, v. HARTFORD INSURANCE COMPANY OF THE MIDWEST, Defendant. U.S. District Court, Middle District of Florida, Fort Myers Division. Case No. 2:19-cv-613-FtM-38MRM. February 19, 2020. Sheri Polster Chappell, Judge. Magistrate’s Report and Recommendation, Mac R. McCoy, U.S. Magistrate Judge, January 30, 2020.ORDER1 Before […]
Articles
Torts — Dog bite — Negligence — Sheriffs — Sovereign immunity — Action alleging deputy sheriff was negligent in handling K-9 that bit plaintiff while attending a public event — Trial court erred in dismissing complaint against sheriff on ground that action was barred by sovereign immunity — Although a plaintiff may not rely on section 767.04 when suing a state agency for a dog bite because it is a strict liability statute, a plaintiff may bring such a suit in common-law negligence — Complaint adequately stated a cause of action for negligence under common law principles — Court rejects argument that plaintiff placed himself in zone of risk by approaching area occupied by deputy and police dog, and that because deputy did not move in proximity to plaintiff there was no zone of risk created by conduct of deputy — Deputy created the zone of risk by patrolling the venue with his K-9 — Whether the deputy was walking around or standing still was irrelevant — Because plaintiff was in a public location he had the right to walk where he wanted, including right up to the deputy, and, unless warned by the deputy to move away, plaintiff had a reasonable expectation that the dog would not bite him — Lawsuit was not barred by sovereign immunity where, although the decision to patrol the public venue with K-9s may have been a discretionary function, the act of patrolling the venue with K-9s was operational
47 Fla. L. Weekly D966a ROBERT McKINLEY, Appellant, v. BOB GUALTIERI, in his official capacity as Sheriff of Pinellas County, Florida, Appellee. 2nd District. Case No. 2D20-3156. May 4, 2022. Appeal from the Circuit Court for Pinellas County; Thomas Ramsberger, Judge. Counsel: Samuel Alexander of Alexander Appellate Law P.A., Deland, for Appellant. Nicole E. Durkin, […]
Workers’ compensation — Attorney’s fees — Judge of compensation claims erred by denying entitlement to employer/carrier-paid attorney’s fees for securing increase in claimant’s average weekly wage based on finding that no actual or real benefit was secured — Although claimant had received disability benefits since the date of accident at the maximum compensation rate, the AWW adjustment increased the 80% threshold for temporary partial disability entitlement — AWW adjustment could also affect potential offsets if claimant receives federal disability benefits — Denial of fee entitlement based on finding that AWW increase was smaller than what claimant sought was also erroneous — An exact match between the claim and the award is not required
47 Fla. L. Weekly D1006a JOSEPH GUERRERA, Appellant, v. BECTON DICKINSON & CO. and SEDGWICK CMS, Appellees. 1st District. Case No. 1D21-1788. May 4, 2022. On appeal from an order of the Office of the Judges of Compensation Claims. Mark A. Massey, Judge. Date of Accident: March 6, 2018. Counsel: Kevin R. Gallagher of Gallagher […]
Torts — Nursing homes — Arbitration — Enforceability of arbitration agreement — Unconscionability — Confidentiality provisions — Error to deny motion to compel arbitration based on determination that arbitration agreement was unconscionable where unconscionable provisions were severable — Record supports trial court’s finding that plaintiff met burden of proving some procedural unconscionability where resident contract was one of adhesion and agreement to arbitrate was neither set off nor conspicuous in any manner — Provisions purporting to waive any attorney’s fees; waive any right to appeal the decision of an arbitrator; and allowing defendants to bring certain claims in court while requiring residents to submit all conflict to arbitration are substantively unconscionable and should be severed from arbitration agreement — Court rejects argument that confidentiality provisions in arbitration agreements are substantively unconscionable — The court finds that, because Florida courts have acknowledged and enforced confidentiality agreements related to mediation proceedings and favor alternative dispute resolution, the confidentiality provision was not unconscionable — Remand to strike offending provisions and to enter orders compelling arbitration
47 Fla. L. Weekly D943a ADDIT, LLC and CAPITAL FUNDING GROUP, INC., Appellants, v. SEAN E. HENGESBACH, as personal representative of the Estate of CARL N. INGOLIA, deceased, Appellee. NEW PORT RICHEY OPERATING, LLC; CHG MANAGEMENT NEW PORT RICHEY, LLC; CAPITAL HEALTH GROUP MANAGEMENT, LLC; MILESTONE RETIREMENT COMMUNITIES, LLC; JOHN W. DWYER; KENNETH ASSIRAN; TIMOTHY […]
Torts — Automobile accident — Discovery — Non-parties — Medical records — Appeals — Certiorari — Trial court departed from essential requirements of the law by compelling production of records pertaining to defendant’s emergency medical treatment arising from the subject motor vehicle accident without first conducting an in camera review of the documents
47 Fla. L. Weekly D942a MICHAEL ZAWISTOWSKI and LORI HALTEMAN, Petitioners, v. MICHAEL GIBSON and GEICO GENERAL INSURANCE COMPANY, Respondents. 2nd District. Case No. 2D21-1703. April 27, 2022. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Paul L. Huey, Judge. Counsel: Anthony J. Russo and Mihaela Cabulea of Butler Weihmuller Katz […]