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News & Publications
CASE SUMMARIES
AMH
Appraisal Consultants, Inc. v. Argov Gavish Partnership,
2006 WL 51150 (Fla. 4th DCA 2006) (non-parties
on verdict forms):
An
owner of building that burned down, and which was insured for
substantially less than the cost of rebuilding, brought a negligence
action against an appraiser and her company. Judgment
was entered in favor of the building owner. The appraiser and
her company appealed the trial court's refusal to submit the
negligence of the owner's insurance agent to the jury. The court
held that a defendant was not entitled to have the insurance
agent placed on the verdict form as a Fabre defendant
(non-party) because it did not present expert testimony regarding
the agent's alleged negligence. In order to have a non-party placed
on the verdict form, a defendant has the burden of proving the
non-party's negligence.
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Blake v.
Singer, 30 Fla. L. Weekly D2416b (Fla. 4th DCA
2005) (presumption of negligence in rear-end collision):
The plaintiff,
Blake, was rear-ended at a stop light by defendant, Singer. Blake
was stopped at the intersection and remained stopped after the
light turned green. She claimed there were emergency vehicles going
through the intersection. Singer confirmed that he heard sirens
from the emergency vehicles, but contended that Blake, who was
in the lane to Singer's left, suddenly and unexpectedly switched
lanes about 50 to 100 feet in front of him. Singer estimated the
vehicles were traveling about 2 to 5 miles per hour prior to impact.
Blake moved for a directed verdict on liability based on the presumption
of negligence against the rear driver in a rear-end collision,
but her motion was denied. In Clampitt v. D.J. Spencer Sales,
786 So. 2d 570 (Fla. 2001), the Florida Supreme Court clarified
that a sudden stop by the front driver, in and of itself, is insufficient
to overcome the presumption of negligence. Only a sudden stop at
a time and place where it could not reasonably be expected by the
rear driver creates a factual issue. The Fourth District Court
of Appeal found that because the plaintiff was at least 50 feet
ahead when she pulled in front of the defendant, and there were
emergency vehicles in the intersection, the defendant's explanation
was insufficient to rebut the presumption of negligence.
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Brunson v. McKay,
905 So. 2d 1058 (Fla. 2nd DCA 2005) (challenge to
settlement of a wrongful death claim):
The adult children of
a decedent challenged the probate court's approval of a settlement
in a wrongful death action stemming from the decedent's death.
The personal representative of the estate, the decedent's widow,
asserted that the children did not have standing to challenge the
proposed settlement, because they were not beneficiaries under
the Wrongful Death Act, Florida Statutes 768.16, et seq. The
probate court held that the children did not have standing,
and they appealed. The District Court of Appeal pointed out
that under ' 768.25, "any survivor" may object to a proposed
settlement in a wrongful death action. Survivors are defined in
' 768.18(1) to include adult children. Thus, the children
did have standing to challenge the settlement.
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Lamb v. Matetzschk,
906 So.2d 1037 (Fla. 2005) (requirements for proposals for settlement):
A motorist filed a personal
injury action against both the driver of the automobile that rear-ended
his vehicle and the driver's wife, alleging that the wife, as a
co-owner of the automobile, was vicariously liable for the motorist's
injuries. The issue became whether Florida Rule of Civil Procedure
1.442 mandates that offers of settlement be differentiated between
the defendants, even if a defendant (the wife's) liability is purely
vicarious, resulting from the active negligence of her husband.
The Court held that a joint proposal for settlement must differentiate
between the defendants, even when one defendant's alleged liability
is purely vicarious.
Ottley
v. Kirchharr, 917 So. 2d 913 (Fla. 1st DCA
2005) (alleged juror misconduct):
A dental malpractice
action resulted in a jury verdict for the dentist. The patient's
counsel then alleged juror misconduct and filed a motion for
a new trial. The trial court found that juror misconduct had
occurred and granted the motion. This appeal followed. The alleged
misconduct revolved around a juror's response to the voir dire
question, "Has
anybody ever had facial reconstructive surgery?" The
juror in question had recent elective cosmetic facial surgery,
which she did not consider reconstructive. Thus, she answered the
question in the negative. The District Court of Appeal found that
no juror misconduct had occurred. There is a three part test for
juror misconduct: 1) the information is relevant
and material to jury service in the case; 2) the juror concealed
the information; and 3) the failure to disclose the information
was not attributable to the complaining party's lack of diligence.
The court found that the juror did not conceal any information,
because it was reasonable that she would not have considered
elective cosmetic facial surgery to be facial reconstructive
surgery, and therefore, the juror answered the plaintiff's
counsel's ambiguous question correctly. Moreover, the lack
of information obtained was due to the lack of diligence on
the part of counsel conducting voir dire. Counsel must provide
sufficient explanation of the type of information which potential
jurors are being asked to disclose.
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Ramirez v. M.L.
Management Co. , et al. , 30 Fla. L. Weekly 2710 (Landlord's
liability for off premises dog bite):
Plaintiff's child
was bitten by a dog at a park adjacent to an apartment complex
where she was a tenant. As a result, plaintiff sued the apartment
management company and others. The dog was owned by another tenant.
The apartment complex did not own the park but advertised the
park, as a feature of the apartment complex. The apartment complex's
rules prohibited the type of dog that bit Plaintiff's child.
The tenant dog owner had two dogs, which were prohibited by the
rules. There were reports that the dogs had menaced other tenants,
and one tenant claimed to have reported the dogs to the apartment's
management company; however, the apartment manager never asked
the owner to remove the dogs from the premises. The Fourth District
Court of Appeal reversed the trial court's grant of summary judgment
in favor of the apartment management company. The court
reasoned that a landowner, in this case the apartment management
company, could be liable to a business invitee (the victim tenant
and her child), for injuries occurring off the premises where
the apartment management company knew that the invitees were
using adjacent lands for purposes connected with the business
invitation. Distinguishing other cases where there was no relationship
between the victim and the landowner, the court concluded that
the landlord owed a duty to its tenants to protect them from
dangerous dogs on adjacent property where the landlord utilized
the adjacent property to promote his business interests.
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Sink v. Emerald
Hill Owners Association, Inc. , 903 So. 2d 1047 (Fla. 1st DCA
2005) (requirements for proposals for settlement):
Appellants challenged
an award of attorneys' fees and costs against them, which was based
on a proposal for settlement. The District Court of Appeal reversed,
because the terms of the proposal were not clear. A proposal for
settlement must be as specific as possible. This will allow the
receiving party to fully evaluate its terms and conditions. The
terms of the release upon which the settlement offer is conditioned
must be stated with sufficient particularity in the proposal to
allow full appraisal of the offer.
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Wilson v. Salamon,
2005 WL 2663432 (Fla. 2005) (dismissal of suit for lack of prosecution):
The parent of an infant
patient filed a medical malpractice action against a physician
and a clinic on March 15, 2001. The defendants timely filed an
answer. Thereafter, an attorney filed a motion to appear pro
hac vice as co-counsel for the plaintiff and discovery responses
were filed with the court on October 29, 2001. However, no other
record activity occurred, until a separate attorney filed another
motion to appear pro hac vice as counsel for the plaintiff,
which was granted on April 4, 2002. From April 4, 2002 to November
4, 2002, no other record activity occurred. Defendants then moved
to dismiss the action for failure to prosecute.
Under Florida
Rule of Civil Procedure 1.420(e), dismissal of a case is allowed
when the court record does not reflect any activity for the preceding
year, unless a party shows good cause why the action should remain
pending. However, if a review of the face of the record reveals
activity within the preceding year by filing of pleadings, order
of court, or otherwise, an action should not be dismissed.
The Florida Supreme
Court held that the order granting a motion to appear pro hac
vice constituted record activity, which prevented the dismissal
of the case for failure to prosecute, regardless of whether that
activity was designed to hasten the suit to a conclusion on the
merits. The Court's Opinion receded from prior interpretations
of Rule 1.420(e), which required trial courts to look behind the
face of the record to subjectively determine whether the activity
reflected of record was merely passive, and therefore, insufficient
to preclude dismissal under the rule, or active, and therefore,
designed to hasten the suit to a conclusion on the merits. According
to the Florida Supreme Court, any record activity within the preceding
year is sufficient to defeat a motion to dismiss for failure to
prosecute.
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