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

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Torts — Dog owner’s liability for damage done by dog to person — Non-bite incident — Strict liability — Affirmative defenses — Comparative negligence — Third-party liability — Action against dog owners brought by plaintiff who fell to ground, breaking her femur and left leg, when her dog’s leash wrapped around her ankles as her dog tried to run from defendants’ dog, who had escaped from his tether in defendants’ back yard — Affirmative defenses of section 767.04, which pertains to injuries resulting from dog bite, are available to defendants in section 767.01 claim for non-bite injuries caused by dog — Accordingly, district court erred when it deprived defendants of their comparative negligence defense — New trial required on issue of plaintiff’s comparative fault — Discussion of interplay between sections 767.04 and 767.01 — Trial court properly excluded defendants’ proffered Fabre defense asserting product liability claim against manufacturer of their dog’s collar, which they alleged broke because of defective manufacturing — Evidence — Damages — Although trial court erred in allowing jury to consider bills for plaintiff’s past medical expenses when those bills were paid at a reduced amount by Medicare, court did not, under circumstances, abuse its discretion when it denied motion for new trial based on this error — Apportionment — Trial court correctly precluded defendants from presenting alleged manufacturing defect in dog’s collar to jury for apportionment of third party’s fault

46 Fla. L. Weekly D2070a DAVID PARSONS and MARLA PARSONS, Appellants, v. PATRICIA CULP, Appellee. 2nd District. Case No. 2D20-600. September 17, 2021. Appeal from the Circuit Court for Highlands County; David V. Ward, Judge. Counsel: Jennifer J. Kennedy of Abbey, Adams, Byelick, & Mueller, L.L.P., Saint Petersburg, for Appellants. Thomas E. Mooney of Mooney […]

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Torts — Premises liability — Slip and fall in supermarket — Foreign substance on floor — Trial court did not err by entering summary judgment in favor of defendant where plaintiff failed to establish that defendant had actual or constructive notice of condition — Civil procedure — Fact that discovery was ongoing does not change result where counsel did not file written motion for continuance of summary judgment hearing or affidavit in opposition to summary judgment based on need to conduct additional discovery

46 Fla. L. Weekly D1986b MARIA MESA DE LOS ANGELES, Appellant, v. WINN-DIXIE STORES, INC., Appellee. 3rd District. Case No. 3D19-2520. L.T. Case No. 17-20195. September 8, 2021. An Appeal from the Circuit Court for Miami-Dade County, Michael A. Hanzman, Judge. Counsel: Perez Law Group P.A., and Luis N. Perez and Williams Mesa, for appellant. […]

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Torts — Automobile accident — New trial — Trial court did not abuse its discretion by denying motion for new trial in which plaintiff asserted that verdict was contrary to manifest weight of evidence, where conflicting evidence was presented at trial and jury’s verdict was product of weighing that evidence to resolve conflicts

46 Fla. L. Weekly D1986a TASHA MARIE SANTOS ALVAREZ, etc., Appellant, v. MIRIAM ACOSTA, et al., Appellees. 3rd District. Case No. 3D20-640. L.T. Case No. 13-25846. September 8, 2021. An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge. Counsel: Law Offices of Oscar Syger, P.A., and Oscar Syger (Boca Raton), for […]

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Insurance — Personal injury protection — Coverage — Affirmative defenses — Waiver — Trial court erred in entering summary judgment in favor of medical provider based on conclusion that insurer waived its no-coverage defense by paying other claims arising from the same accident — Coverage or restrictions on coverage cannot be extended by doctrine of waiver — Insurer showed that its policy excluded coverage for named insured or any relative while occupying a motor vehicle owned by named insured but not listed under policy, a circumstance that applied in instant case — Remand with instructions to enter summary judgment in favor of insurer

46 Fla. L. Weekly D1942b UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. STAND-UP MRI OF MIAMI, INC., a/a/o Omaira Perez, Appellee. 3rd District. Case No. 3D21-71. L.T. Case Nos. 09-333 SP; 19-310 AP. September 1, 2021. An appeal from the County Court for Miami-Dade County, Linda Diaz, Judge. Counsel: Michael J. Neimand, for appellant. George A. […]

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Attorney’s fees — Offer of judgment — Judgment obtained — Post-offer prejudgment interest is excluded from the “judgment obtained” that is compared to a rejected settlement offer when determining entitlement to attorney’s fees under section 768.79, Florida Statutes

46 Fla. L. Weekly S259a CCM CONDOMINIUM ASSOCIATION, INC., etc., Petitioner, v. PETRI POSITIVE PEST CONTROL, INC., etc., Respondent. Supreme Court of Florida. Case No. SC19-861. September 9, 2021. Application for Review of the Decision of the District Court of Appeal Certified Great Public Importance/Certified Direct Conflict of Decisions. Fourth District – Case No. 4D18-1290 […]

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