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Case Law Blog Posts in 2022

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  • Florida Second DCA rules that Florida’s dog bite statute, § 768.28, does not apply to lawsuit against Sheriff acting in his official capacity, but finds common law basis for negligence complaint in defendant’s alleged creation of a foreseeable “zone of risk” by placing K-9 close to event bystanders

    On May 4, 2022, in McKinley v. Gualtieri, No. 2D20-3156, the Florida Second DCA reversed a trial court’s dismissal of a plaintiff’s dog bite case against the Pinellas County Sheriff, finding that the trial court erred in determining...

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  • Florida Third DCA rules in first-party property insurance case that trial court order compelling appraisal was premature, finding that property owner filed lawsuit contesting appraisal of damages without first engaging in “meaningful exchange of information” to substantiate the existence of a genuine disagreement

    On May 4, 2022, in Certain Underwriters at Lloyd’s et al, v. Lago Grande 5-D Condominium Association, Inc., No. 3D21-636, a first-party property insurance case in which a property owner filed suit against its insurer alleging underpayment...

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  • Florida Second DCA rules that trial court erred in dismissing plaintiff’s declaratory judgment claim in first party property insurance dispute, finding that lack of ambiguity in contract did not bar plaintiff from seeking declaratory judgment as alternative to breach of contract lawsuit

    On May 18, 2022, in Cintron v. Edison Insurance Company, No. 2D21-1334, the Florida Second DCA reversed a trial court’s dismissal of a plaintiff’s declaratory judgment complaint. The complaint alleged that the defendant...

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  • Florida First DCA rules that plaintiff in motor vehicle negligence case was bound by settlement agreement accepted by insurance company notwithstanding insurance company’s failure to provide policy disclosure “under oath”

    On May 25, 2022, in Koung, et al. v. Giordano, et al. No. 1D20-724, the Florida First DCA reversed a trial court determination that there was no enforceable settlement agreement between an insurance company and a plaintiff who was...

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  • Eleventh Circuit rules in maritime slip and fall case that evidence of defendant cruise line’s prior knowledge of “risk-creating condition” of wetness in pool area precluded summary judgment for defendant

    On May 5, 2022, in Brady v. Carnival Corporation, No. 21-10772, the Eleventh Circuit Court of Appeals reversed a summary judgment entered by the district court for the defendant cruise line company in a maritime premises liability case...

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  • Eleventh Circuit rules in maritime premises liability case that cruise ship security officers’ presence during the verbal altercation that preceded a passenger-on-passenger assault did not provide actual or constructive notice that a physical assault was to follow

    On May 3, 2022, in Fuentes v. Classica Cruise Operator Ltd., Inc. No. 20-14639, the Eleventh Circuit Court of Appeals affirmed a summary judgment entered by the district court for the defendant cruise line company in a maritime...

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  • Florida Supreme Court amends Florida Rules of Civil Procedure to prohibit nonmonetary terms in proposals for settlement

    On May 26, 1960, the Florida Supreme Court approved an amendment to Fla. R. Civ. P. 1.442, which addressed proposals for settlement. Effective July 1, 2022, subdivisions (c)(2)(C) and (c)(2)(D) of rule 1.442 are amended to prohibit...

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  • Florida First DCA rules that $1.3 million proposal for settlement made by plaintiff to defendant with only $50,000 of liability insurance was not made in good faith

    On May 25, 2022, in State Farm v. Lightfoot et al., No. 1D20-2285, the Florida First DCA reversed a trial court ruling which had held that a proposal for settlement (PFS) by a plaintiff in a motor vehicle negligence case was valid...

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  • Florida Third DCA holds that “mailbox rule” does not apply to statutory pre-suit notice to governmental entity under Fla. Stat. § 768.28(6); notice must be received “in hand” within three-year period

    On May 4, 2022, in Simmons v. Public Health Trust of Miami-Dade County, et al. No. 3D21-1388, the Florida Third DCA affirmed a summary judgment for the defendant, finding that the plaintiff failed to comply with the mandatory...

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  • Florida Fourth DCA rules in wrongful death case that corporate private contractor providing security services for Broward County bus terminal was not entitled to absolute sovereign immunity, finding that absolute sovereign immunity under Fla. Stat. § 768.28(9) applies only to individuals

    On May 4, 2022, in Naso v. Hall and G4S Secure Solutions (USA) Inc., No. 4D21-1521, the Florida Fourth DCA reversed a trial court ruling in a wrongful death case which had granted the defendant company absolute sovereign immunity...

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  • Florida First DCA affirms trial court’s denial of directed verdict for tobacco company in Engle-progeny tobacco case, finding sufficient evidence that tobacco companies’ advertising influenced the decedent to switch to low tar cigarette for supposed health benefits

    On May 4, 2022, in Philip Morris USA Inc. v. Cuddihee, No. 1D20-2486, the Florida First DCA affirmed a trial court’s denial of the tobacco company defendant’s motion for a directed verdict in an Engle-progeny case in which the jury found...

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  • Florida Fourth DCA rules that Florida Wrongful Death Act did not permit a same sex spouse to make consortium claim for injuries the decedent spouse suffered prior to marriage, rejecting argument that given previous unconstitutional ban of same sex marriages, marital status should relate back to time of injury

    On May 11, 2022, in Philip Morris USA, Inc., et al. v. Rintoul, No. 4D20-1963, the Florida Fourth DCA ruled in an Engle-progeny tobacco case that the same sex spouse of the deceased smoker was not entitled to make a loss of marital...

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  • Eleventh Circuit Court of Appeals rules in insurance bad faith case that consent judgment memorializing a settlement agreement between the plaintiff and the adverse driver constituted a qualifying “excess judgment”

    On April 5, 2022, in McNamara, et al. v. GEICO, No. 20-13251, the Eleventh Circuit Court of Appeals reversed a district court’s summary judgment for the defendant insurance company in an insurance bad faith case. The district court had granted the summary judgment after concluding that a qualifying “excess judgment” must be based on a jury verdict ...

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  • Florida Third DCA rules that trial court erred in excluding expert testimony based on conclusions about weight of the testimony rather than limiting Daubert inquiry to an examination of its admissibility

    On April 13, 2022, in Peng v. Citizens Property Insurance Corporation, No. 3DF21-1602, the Florida Third DCA reversed a summary judgment in favor of the defendant insurance company in a first-party property insurance dispute. The trial court had granted summary...

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  • Florida Supreme Court rules in medical negligence case that mailing of presuit notice of intent to initiate litigation, not receipt of notice, begins statutory tolling period

    On April 21, 2022, in Boyle v. Samotin, et al., No. SC-20-1399, the Florida Supreme Court ruled that under § 766.106, Florida Statutes (2018), and Fla. R. Civ. P. 1.650, it is the timely mailing of the presuit notice of intent to initiate litigation (“NIIL”) in a medical negligence...

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  • Florida Third DCA quashes trial court order denying medical negligence defendant’s motion to dismiss case based on plaintiff’s alleged failure to comply with statutory presuit requirements

    On April 20, 2022, in University of Miami, etc. v. Jones, etc., No. 3D22-0046, the Florida Third DCA granted a medical negligence defendant’s certiorari petition and quashed a trial court order denying the defendant’s motion to dismiss the complaint for failure to comply...

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  • Florida Fourth DCA rules that lawsuit involving nursing staff’s alleged refusal to allow patient to keep her walker during hospital admission, resulting in fall, was subject to medical negligence presuit requirements

    On April 20, 2022, in Martin Memorial Health Systems, Inc., et al. v. Gorham, No. 4D21-2949, the Florida Fourth DCA granted a medical negligence defendant’s certiorari petition and quashed a trial court order denying the defendant’s motion to dismiss the complaint ...

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  • Florida Fifth DCA rules that trial court erred in using balance owed on car loan as measure of damages for motor vehicle negligence plaintiff whose vehicle was totaled in accident

    On April 1, 2022, in Turay v. McCray, the Florida Fifth DCA reversed a final judgment for the plaintiff in a motor vehicle negligence case in which the court, after a nonjury trial, awarded the plaintiff damages for the monies he paid to satisfy the balance owed on his car...

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  • Florida Third DCA affirms summary judgment for Miami-Dade County in negligence case involving injury to passenger ofCounty-operated bus, ruling that bus driver’s sudden stop did not suffice to show violation of the carrier’s duty

    On April 13, 2022, in Ramos v. Miami-Dade County, etc., No. 3D21-757, the Florida Third DCA issued a per curiam affirmance of a summary judgment in favor of the defendant Miami-Dade County in a case involving a bus passenger who was allegedly injured...

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  • Florida Supreme Court rules that trial court properly prohibited plaintiff from introducing as evidence the gross amount of her past medical expenses, limiting her to introducing only the discounted amount paid by Medicare

    On April 28, 2022, in Dial v. Calusa Palms Master Association, Inc., No. SC21-43, the Florida Supreme Court answered a certified question from the Second DCA and ruled that its prior holding in Joerg v. State Farm, 176 So, 3d 1247 (Fla. 2015), that a trial jury’s...

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  • Florida Fourth DCA reverses trial court’s dismissal of bad faith complaint for alleged failure to provide sufficient specificity in civil remedy notice

    On March 30, 2022, in Gooden v. People’s Trust Insurance Company, No. 4D20-2760, the Florida Fourth DCA reversed a trial court’s dismissal of a bad faith complaint filed by an insured against their insurance company. The plaintiff alleged in their civil remedy notice...

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  • Florida Fourth DCA affirms dismissal of hospital and nursing staff from medical negligence complaint based on pre-suit affidavit’s failure to address their negligence

    On March 23, 2022, in Rafferty v. Martin Memorial Medical Center, Inc., et al, No. 4D21-368, the Florida Fourth DCA issued a per curiam affirmance of a trial court order granting a motion to dismiss certain defendants from a medical negligence complaint...

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  • Florida Second DCA rules that PIP defendant’s offer of judgment in the amount of one dollar was valid good faith offer because of controlling legal precedent in its favor on dispositive legal issue

    On March 2, 2022, in Progressive Select Insurance Company v. Kagan Jugan & Associates, P.A., No. 2D21-274, the Florida Second DCA reversed a trial court order which had denied a prevailing defendant in a PIP case its claim for attorney’s fees and costs under Florida’s proposal...

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  • Florida Fifth DCA finds that trial court erred in allowing plaintiff who had not specifically pled aggravation of a preexisting injury to raise claim at trial

    On March 25, 2022, in State Farm v. Davis, No. 5D20-1595, the Florida Fifth DCA reversed a judgment for the plaintiff in a motor vehicle negligence case and remanded for a new trial after concluding that the trial court erred in permitting an unpled claim...

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  • Florida Legislature passes new evidentiary statute creating rebuttable presumption that internet sourced mapping data should be judicially noticed in civil cases upon a party’s request

    On July 1, 2022, new Fla. Stat. § 90.2035 will take effect. Fla. Stat. § 90.2035 provides that upon request of a party to a lawsuit a court may take judicial notice of an image, map, location, distance, calculation, or other information taken from a widely accepted web mapping...

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  • Florida Second DCA finds that Sheriff of Pinellas County was entitled to sovereign immunity protection from negligence lawsuit because decision not to include seatbelts in prisoner transport van was discretionary policy or planning level governmental function

    On March 30, 2022, in Gualtieri v. Pownall, et al., No. 2D20-3315, the Florida Second DCA concluded that a negligence claim against the Sheriff of Pinellas County was barred by the doctrine of sovereign immunity. The plaintiff was injured while under detention ...

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  • Florida Third DCA rules that UM coverage was unavailable where $175,000 settlement with County School Board, employer of at-fault driver, was less than the $200,000 limits of the Board’s liability insurance policy

    OOn March 30, 2022, in White v. Ascendant Commercial Insurance, Inc. et al, No. 3D21-1455, the Florida Third DCA affirmed a summary judgment in favor of the defendant UM insurance carrier in a motor vehicle negligence case. The Third DCA ruled that the UM ...

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  • Florida Fourth DCA rules that since surviving spouse in wrongful death case was barred from recovering mental pain and suffering damages because she married decedent after the incident that caused his death, surviving adult children were statutorily entitled to recover damages

    On March 30, 2022, in Ripple v. CBS Corporation, et al., No. 4d20-1939, the Florida Fourth DCA affirmed, in part and per curiam, the trial court’s judgment for the defendants in a wrongful death case which was based on the trial court’s determination that the surviving spouse...

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  • Florida Fourth DCA finds that trial court erred in allowing wrongful death plaintiff to argue to jury that it could award pain and suffering damages to surviving daughter calculated over a period extending beyond the decedent’s normal life expectancy

    On March 30, 2022, in Healthcare Underwriters Group, Inc., et al, v. Sanford, No. 4D20-2023, the Florida Fourth DCA reversed, in part, a judgment for the plaintiff in a wrongful death medical negligence lawsuit, concluding that the trial court erred by allowing...

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  • Eleventh Circuit Court of Appeals finds that school administrators were not entitled to qualified immunity in civil rights lawsuit brought by high school student allegedly subjected to multiple strip searches in front of an open window

    On February 4, 2022, in T.R. a Minor, v. Lamar County Board of Education, et al, No. 21-12424, the Eleventh Circuit Court of Appeals reversed a district court’s grant of summary judgment to the defendants in a 42 U.S.C. 1983 civil rights action brought...

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  • Florida First DCA rules in Dram Shop Act exception case that defendant bar owner which allegedly served alcohol to underage eat-fault driver was entitled to comparative negligence instruction comparing its fault to codefendant bar which allegedly served alcohol to underage plaintiff

    On February 9, 2022, in Main Street Entertainment, Inc., v. Faircloth, No. 1D19-4058, the Florida First DCA reversed a $28.6 million final judgment for the plaintiff against a bar owner in a Fla. Stat. § 768.125 Dram Shop exception case, finding that the bar owner should...

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  • Florida Third DCA rejects argument that apartment building owner had duty under “means restriction” theory to protect plaintiff trespasser from using roof to attempt suicide

    On February 23, 2022, in Iacono v. Kingsley Arms Apartments, Inc., No. 3D20-1830, the Florida Third DCA affirmed a trial court’s dismissal in favor of the defendant apartment building owner in a premises liability case. The plaintiff was seriously injured when...

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  • Eleventh Circuit Court of Appeals affirms dismissal of maritime slip and fall premises liability case against cruise line, concluding that complaint lacked sufficient facts suggesting the amount of time the hazard existed on the deck before the fall or that there were crewmembers monitoring the area

    On February 28, 2022, in Newbauer v. Carnival Corporation, No. 21-10955, the Eleventh Circuit Court of Appeals affirmed a district court’s dismissal of a plaintiff’s maritime premises liability complaint against the cruise line defendant. The plaintiff alleged that her slip and fall...

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  • Florida Second DCA rules that defendant County in negligence lawsuit was entitled to sovereign immunity because allegedly negligent acts constituted “discretionary planning-level functions” rather than “acts at an operational level”

    On February 2, 2022, in Broward County v. Manarite, et al, the Florida Fourth DCA, No, 4D21-2328, the Florida Fourth DCA reversed a trial court order denying the defendant county’s motion to dismiss on sovereign immunity grounds a negligence lawsuit brought...

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  • Florida Fifth DCA rules that not-for-profit corporation created by hospital special taxing district to provide employee staffing and management services is not an “employer” subject to Florida Private Whistle-blower Act

    February 11, 2022, in Dennison v. Halifax Staffing, Inc., No. 5D20-2201, the Florida Fifth DCA affirmed a trial court summary judgment for the defendant Halifax Staffing, Inc., holding that it was not a private entity subject to Florida’s Private Whistleblower’s Act...

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  • Florida Fifth DCA rules in medical negligence case that plaintiff’s expert who relied in part on an inference to render an opinion on causation did not engage in impermissible inference stacking because the opinion was also drawn from direct evidence.

    On January 21, 2022, in Dumigan v. Holmes Regional Medical Center, Inc., No, 5D21-1087, the Florida Fifth DCA reversed a directed verdict for the defendant hospital in a medical negligence case. The defendant had successfully argued before the trial court...

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  • Florida Second DCA finds that personal jurisdiction in wrongful death case did not exist over defendant helicopter manufacturer based in California

    On January 5, 2022, in Robinson Helicopter Company, Inc., v. Gangapersaud, No. 2D20-2470, a personal injury wrongful death case, the Florida Second DCA reversed a trial court order which had denied a motion to dismiss by the defendant on the grounds...

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  • Florida First DCA rules that Covid-19 patient’s right to self-determination did not legally compel hospital physicians to administer treatment against their medical judgment or perceived ethics

    On January 27, 2022, in Pisano v. Mayo Clinic Florida, No. 1D22-43, the Florida First DCA issued an opinion explaining its reasoning for an expedited order entered on January 14, 2022, declining to exercise certiorari review of a trial court’s order denying...

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  • Florida Third DCA rules that personal injury complaint involving injuries allegedly suffered by plaintiff when surgical table collapsed underneath him was not subject to Florida’s medical negligence pre-suit requirements

    On January 26, 2022, in University of Miami d/b/a Bascom Palmer Eye Institute v. Bloomer, No. 3D21-2298, the Florida Third DCA denied a certiorari petition by the defendant medical provider to quash the trial court’s denial of a motion to dismiss a negligence complaint...

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  • Florida Second DCA rules that defendant in motor vehicle negligence case did not have “beneficial ownership” of vehicle for purposes of the Dangerous Instrumentality Doctrine since there was no sales contract or transfer of possession of vehicle to defendant

    On January 5, 2022, in Rondell v. Romano, et al., No. 2D20-2840, the Florida Second DCA affirmed a summary judgment for the defendant in a motor vehicle negligence case based upon the defendant’s lack of a beneficial ownership interest in the vehicle at issue...

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  • Florida Fourth DCA rules that original property developer was not a proper Fabre defendant in premises liability case because purchaser had a reasonable opportunity to discover latent defect and take precautions in the 24 years since transfer of the property

    On January 5, 2022, in J.L. Property Owners Association, Inc. v. Schnurr, No. 4D19-3474, the Florida Fourth DCA the affirmed a trial court ruling that denied the motion of a premises liability defendant, the property owner’s association controlling the area in which ...

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  • Florida Second DCA rules that since prevailing plaintiff recovered less than 25% of defendant’s offer of judgment, the plaintiff’s recoverable charges under Fla. Stat. § 57.041(1) are limited to costs that were incurred prior to the offer being made

    On January 5, 2022, in Maddox v. Trombetta, No. 2D20-3663, the Florida Second DCA addressed the interplay between Florida’s Proposal for Settlement Statute, Fla. Stat. § 768.79, and Fla. Stat. § 57.041(1), which provides that a party recovering judgment...

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  • Florida Supreme Court approves changes to appellate rules permitting interlocutory appeal of rulings granting or denying a motion to assert a claim for punitive damages

    On January 6, 2022, the Florida Supreme Court published a corrected opinion approving an amendment to Fla. R. App. P. 9.130 adding new subdivision (a)(3)(G) to authorize appeals of nonfinal orders that grant or deny a motion for leave to amend to assert a claim...

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  • Florida Fifth DCA rules that notes brought by plaintiff to deposition but not used to refresh recollection during deposition were not discoverable under Fla. Stat. § 90.613

    On January 21, 2022, in Cowan v. Gray, No. 5D21-1557, the Florida Fifth DCA quashed a trial court order which had compelled motor vehicle negligence plaintiffs to produce handwritten notes they made in preparation for their depositions. The Fifth DCA noted...

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