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Insurance — Commercial general liability — Coverage — Bodily injury — Duty to defend and indemnify — Exclusions — Insured bar is entitled to summary judgment on issue of coverage under commercial general liability insurance policy for underlying action against insured in connection with injuries suffered by bar patron as a result of allegedly being struck by bar owner — Expected or intended injury exclusion — Assault and battery exclusion — Insurer has a duty to defend insured bar against claims of injured patron in underlying tort action because the factual allegations in the underlying action “fairly and potentially” fall within Reasonable Force Exception in the Expected or Intended Injury Exclusion, which preserves coverage for “bodily injury” resulting from use of reasonable force to protect persons or property and triggers insurer’s duty to defend — Coverage is patently ambiguous, and must be construed in favor of insured bar, where Reasonable Force Exception and Assault and Battery Exclusion, when read together, are facially unclear and are ambiguous as to when insured’s use of “reasonable force to protect persons or property” would be covered — Where underlying action alleges that bar owner was attempting to block bar patron from entering into the establishment and, in the ensuing contact, bar patron was injured when he fell and struck his head, facts could “fairly and potentially” implicate coverage under the Reasonable Force Exception — Insurer has a duty to indemnify insured for any monetary damages paid in connection with underlying action and injuries allegedly suffered by bar patron where policy is patently ambiguous, and, giving every provision “its full meaning and operative effect,” the policy excludes coverage for all claims arising from assault and/or battery with exception of claims involving “reasonable force to protect persons or property” — Insurer’s duty to indemnify is ripe for adjudication in this declaratory judgment action where two of four counts in underlying action were voluntarily dismissed and final judgment was entered on remaining counts against insured bar and its owner — Insurer’s cross-motion for summary judgment is denied where insurer did not offer any contradictory facts to create a material dispute of fact as to whether the force used by defendant owner was “reasonable”

29 Fla. L. Weekly Fed. D59a BARAKI, INC., f/k/a Opa Greek Cafe, Inc., and JEFFREY GRABOWSKI, Plaintiffs, v. COVINGTON SPECIALTY INSURANCE COMPANY, Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:18-cv-2313-MSS-SPF. December 7, 2021. Mary S. Scriven, Judge. Counsel: James J. Dowling, James J. Dowling, P.A., Tarpon Springs; and Gerasimos “Jerry” […]

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Civil procedure — Discovery — Pure bill of discovery — Trial court erred in entering final order granting pure bill of discovery directing the production and permission to inspect the documents sought in complaint for pure bill of discovery, because complaint does “not meet the narrow and limited circumstances under which a pure bill of discovery is justified” — Complaint for pure bill of discovery failed to state a proper cause of action where it is evident from complaint that appellants seek to utilize the pure bill of discovery in order to determine whether sufficient evidence exists to render their causes of action viable and/or nonfrivolous, and appellants make no case that the documents are not otherwise available in possible future litigation filed outside the jurisdiction — A pure bill of discovery does not lie “to substantiate one’s suspected causes of action” or to preview discovery for a prospective action — While a pure bill of discovery is viable “to obtain the disclosure of facts within the defendant’s knowledge, or deeds or writings or other things in his custody, in aid of the prosecution or defense of an action pending or about to be commenced in some other court,” the bill may not be used as a fishing expedition to see if causes of action exist, as in this case

RAV BAHAMAS LTD., etc., et al., Appellants, v. MARLIN THREE, LLC, etc., et al., Appellees. 3rd District. Case No. 3D21-976. L.T. Case No. 20-7386. February 2, 2022. An Appeal from the Circuit Court for Miami-Dade County, Valerie R. Manno Schurr, Judge. Counsel: Kula & Associates, P.A., and W. Aaron Daniel and Elliot B. Kula; Bell […]

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Torts — Negligence — Counties — Sovereign immunity — Dismissal — Appeals — Action arising from injuries plaintiff suffered as a result of being struck by a vehicle after plaintiff veered off bike path in an attempt to avoid dumpsters which had been placed on the path near worksite maintained by independent water control district — Trial court erred in denying county’s motion to dismiss based on sovereign immunity grounds where complaint alleged county was negligent in its discretionary planning-level functions and did not allege that county created the alleged known dangerous condition which was the subject of the action — County’s decisions not to redirect traffic or require traffic control devices at the worksite; not to enforce compliance with safety guidelines at the worksite; and not to supervise the worksite or require additional workers or police to direct traffic and pedestrians were discretionary planning-level functions which cannot subject county to tort liability — County cannot be subject to tort liability for its alleged failure to warn of or correct danger where it did not create the danger — Court rejects argument that order was not appealable under rule 9.130 because trial court did not address county’s sovereign immunity argument — Appellate court’s jurisdictional inquiry focuses not on the challenged order, but rather on the motion that the order adjudicates

47 Fla. L. Weekly D334b BROWARD COUNTY, Appellant, v. CHRISTINA MANARITE, individually and on behalf of GIOVANNI MANARITE, a minor child, ALBERTO CASTRO, CENTRAL BROWARD WATER CONTROL DISTRICT, WASTE MANAGEMENT INC. OF FLORIDA d/b/a WASTE MANAGEMENT, and TOWN OF DAVIE, Appellees. 4th District. Case No. 4D21-2328. February 2, 2022. Appeal of nonfinal order from the […]

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Wrongful death — Discovery — Mental health records — Appeals — Certiorari — Petition seeking review of order requiring disclosure of decedent’s mental health records related to his treatment — While records were relevant and discoverable because they relate to plaintiff’s alleged damages, the order departed from essential requirements of the law because it did not require in camera review of records to ensure only relevant records were produced

47 Fla. L. Weekly D343b SHAWN LOWITZ, individually, and SHAWN LOWITZ, as Personal Representative of the Estate of David A. Lowitz, Deceased, Petitioner, v. SOUTH ALABAMA BRICK COMPANY, INC. d/b/a W.R. TAYLOR & COMPANY and CHRISTIAN SENN, Respondents. 1st District. Case No. 1D21-1555. February 2, 2022. Petition for Writ of Certiorari — Original Jurisdiction. Counsel: […]

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Workers’ compensation — Average weekly wage — Judge of compensation claims erred by not including pro rata share of claimant’s annual merit bonus when calculating AWW — Although claimant was not eligible for bonus until her anniversary date, and accident occurred prior to that date, bonus was based on satisfactory performance by an employee during the preceding 52-week period — Claimant’s eventual receipt of merit bonus from employer indicated that her performance had been satisfactory during the entire 52-week period and leads to conclusion that claimant earned a quarter of the bonus during the 13 weeks prior to the date of accident

47 Fla. L. Weekly D297c RITA NOA, Appellant, v. CITY OF AVENTURA and FLORIDA LEAGUE OF CITIES, Appellees. 1st District. Case No. 1D21-0549. January 26, 2022. On appeal from an order of the Office of the Judges of Compensation Claims. Sylvia Medina-Shore, Judge. Date of Accident: February 27, 2020. Counsel: Amie E. DeGuzman, Jacksonville, for […]

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