FLORIDA 'S NEW SLIP AND FALL STATUTE: §768.0755
By Ronald Stump & Andrew Stone • Volume 4, Issue 6 June 2010
INTRODUCTION
On April 14, 2010, Florida Governor Charlie Crist signed House Bill 689 which repealed Florida Statute §768.0710, making the new law, Florida Statute §768.0755, effective July 1, 2010. This tort reform bill essentially reinstates slip-and-fall law in Florida as it existed prior to the Florida Supreme Court's decision in Owens v. Publix Supermarkets , 802 So.2d 315 (2001).
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RAMIFICATIONS OF THE FLORIDA LEGISLATURE'S RESPONSE TO ESSEX V. ZOTA : WHAT THE SURPLUS LINES INSURER NEEDS TO KNOW
Hugh J. Connolly , Esq. • Volume 4, Issue 5 May 2010
INTRODUCTION
In Essex Ins. Co. v. Zota , 985 So.2d 1036 ( Fla. 2008), the Florida Supreme Court reaffirmed that the statutory provisions of chapter 627, outside of the ratings laws of part I , applied to surplus lines insurance.
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FLORIDA SUPREME COURT DETERMINES UNSOLICITED BLAST-FACSIMILE ADVERTISEMENTS TRIGGER “PERSONAL AND ADVERTISING INJURY” COVERAGE
Hugh J. Connolly , Esq. • Volume 4, Issue 4 April 2010
INTRODUCTION
The standard commercial general liability insurance policy provides coverage for damages because of “personal and advertising injury.” This coverage insures against injuries which “arise out of” the offenses specifically enumerated in the policy, and coverage is triggered by the offense, and not by the injury or damage which a plaintiff suffers.
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RELEASE LANGUAGE CAN BE A DEAL BREAKER WHEN HANDLING PRE-SUIT
TIME & POLICY LIMIT DEMANDS: GONZALEZ V. CLAYWELL
Andrew D. Stone, Esq. & Jesse L. Cohen, Esq. • Volume 4, Issue 3 March 2010
FACTS
In Gonzalez v. Claywell, 24 So.3d 1260 (Fla.1st DCA 2009), the claimant was involved in an auto accident with a GEICO insured. The claimant then retained counsel who, on September 29, 2005, sent a pre-suit time limit demand to GEICO. The demand letter provided that the offer would remain open until October 31, 2005, and stated that the claimant would execute a release only as to GEICO’s insureds. The letter also specifically indicated that it was a “unilateral offer” that could be accepted only by “complete performance.”
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FLORIDA COURT FOCUSES ON CLAIMS HANDLING IN DECIDING TO SUBMIT
BAD FAITH CASE TO THE JURY
Andrew D. Stone, Esq. & Jesse L. Cohen, Esq. • Volume 4, Issue 2 February 2010
UNDERLYING CLAIM
Facts of Accident
On August 12, 2003, Maria Gutierrez made a left turn directly into the path of an oncoming motorcycle driven by the claimant. As a result of the collision, the claimant sustained serious injuries including a spinal cord injury. He was hospitalized for 13 days and then transferred to a nursing home. (Note: At the time of the accident, Ms. Gutierrez had an auto liability policy
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FLORIDA COURT FINDS THAT IT IS NOT BAD FAITH TO CONSIDER LIABILITY
DEFENSES WHEN EVALUATING CATASTROPHIC INJURY CASES
Andrew D. Stone, Esq. • Volume 4, Issue 1 January 2010
BLAIR v. SAM’S CLUB
Facts of Accident
On April 21, 2001, while on a dock, the plaintiff sat on a chair that was manufactured by Shin Crest and sold by Sam’s Club. (Note: AIU insured Shin Crest. Sam’s Club was an additional insured on its $2 million eroding policy.) As she was sitting in the chair, the plaintiff fell off of the dock, landed in a dry lake-bed, and was rendered a quadriplegic.
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FLORIDA COURTS GIVE BROAD APPLICATION TO THE AUTOMOBILE EXCLUSION
Hugh J. Connolly , Esq. • Volume 3, Issue 12 December 2009
INTRODUCTION
A standard general liability insurance policy contains an auto exclusion precluding coverage for “bodily injury” arising out of the ownership, maintenance, or use of any “auto.” We are often asked by claim examiners whether the auto exclusion encompasses claims of negligence that, at first glance, appear to be separate and distinct from a typical claim of auto negligence.
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DO FLORIDA COURTS APPLY A DOUBLE STANDARD WHEN ANALYZING PROXIMATE CAUSE?
Andrew D. Stone , Esq. • Volume 3, Issue 11 November 2009
FACTS
On September 9, 2009, the 3rd DCA rendered its decision in Probkevitz v. Velda Farms, LLC, 34 Fla.L.Weekly D1842. The wrongful death lawsuit arose out of an intersectional auto collision which occurred while the minor decedent, Denise, was driving her mother’s vehicle without her mother’s permission and in violation of her restricted license.
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THE INSURABILITY OF PUNITIVE DAMAGES IN FLORIDA
Hugh J. Connolly, Esq. • Volume 3, Issue 10 October 2009
INTRODUCTION
A standard commercial general liability insurance policy provides coverage for “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”
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FLORIDA WRONGFUL DEATH ACTIONS IN A NUTSHELL
Andrew D. Stone , Esq. • Volume 3, Issue 9 September 2009
WHO IS ENTITLED TO TO FILE AN ACTION FOR WRONGFUL DEATH?
Pursuant to Fla.Stat.§768.20, an action for wrongful death must be brought by the decedent’s personal representative. It should be noted that Florida’s Probate Code sets forth a statutory priority which the personal representative of the decedent’s estate must follow when paying the expenses of the administration and obligations of the decedent’s estate. See Fla.Stat. §733.707.
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FLORIDA'S 2ND DCA CONFIRMS THAT ABOLITION OF JOINT AND SEVERAL LIABILITY RENDERS CONTRIBUTION CLAIMS OBSOLETE
Andrew D. Stone , Esq. & Jesse L. Cohen, Esq. • Volume 3, Issue 8 August 2009
FACTS
In T&S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, Inc., 11 So.3d 411, (2d DCA 2009), T&S, the property owner, hired Wink Industrial to perform repair work on its property. The plaintiff was injured in the course and scope of his employment with Wink . However, Wink did not have workers’ compensation insurance in place at the time of the loss. Rather than filing a complaint against both T&S and Wink, plaintiff filed his lawsuit solely against T&S.
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THE USE OF ‘FABRE’ DEFENDANTS AS AN EFFECTIVE DEFENSE STRATEGY
Andrew D. Stone , Esq. • Volume 3, Issue 7 July 2009
WHAT IS A FABRE DEFENDANT?
A Fabre defendant is a nonparty that a defendant alleges to be wholly or partially at fault and that the defendant contends should be placed on the verdict form in order for a jury to apportion a percentage of fault against them. See Vucinich v. Ross, 893 So.2d 690 (Fla. 5th DCA 2005).
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ARE ANY CONDITIONS IN FLORIDA “SAFE” AS A MATTER OF LAW?
Andrew D. Stone , Esq. • Volume 3, Issue 6 June 2009
INTRODUCTION
We frequently see lawsuits where plaintiffs allege that the most innocuous conditions are dangerous. These conditions go beyond the “open and obvious” cracks in the pavement and puddles of “transitory foreign substances”. They include sprinkler heads in planters, the dreaded curb, and the sidewalk that is not perfectly flat.
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ARE ATTORNEYS’ FEES AWARDED TO A PLAINTIFF PURSUANT TO FLORIDA’S CONDO ACT COVERED UNDER A COMMERCIAL GENERAL LIABILITY INSURANCE POLICY?
Hugh J. Connolly, Esq. • Volume 3, Issue 5 May 2009
INTRODUCTION
Pursuant to § 718.303, Fla. Stat., the prevailing party in an action between a unit owner and a condominium association is entitled to recover attorneys’ fees. Whether attorneys’ fees awarded to a plaintiff pursuant to this provision of Florida’s Condominium Act are covered under a commercial general liability insurance policy turns on the language of the insurance contract between the insurer and its insured. Generally, a CGL insurance policy provides that the insurer will “pay those sums that the insured becomes obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”
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THE “ACCEPTANCE” OF A TIME AND POLICY LIMIT “OFFER” IS NOT BASED SOLELY ON AN AGREEMENT AS TO THE MONETARY TERMS
Andrew D. Stone, Esq. & Jesse L. Cohen, Esq. • Volume 3, Issue 4 April 2009
FACTS
On June 3, 2009, the 4th DCA rendered their opinion in the case of Grant v. Lyons, 34 Fla. L. Weekly D1114 (Fla. 4th DCA 2009). In Grant, the plaintiff was involved in auto accident and subsequently filed suit for personal injuries. The Defendant had an auto insurance policy issued by AIG with limits of $100,000.00
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DOES FLORIDA’S COMPARATIVE FAULT STATUTE ALLOW THE JURY TO ALLOCATE FAULT AGAINST A NON-PARTY WHO ACTIVELY PARTICIPATES IN THE CRIME, BUT DOES NOT SPECI FICALLY CAUSE THE INJURY? – HENNIS v. CITY TROPICS BISTRO, INC.
Andrew D. Stone, Esq. • Volume 3, Issue 3 March 2009
FACTS
In Hennis v. City Tropics Bistro, Inc.,1 So.2d 1152 (Fla. 5th DCA 2009), the plaintiff filed a lawsuit against City Tropics Bistro, Inc. (“City Tropics”)in which he alleged that City Tropics failed to implement reasonable security measures and that their failure to do so caused him to be attacked by a criminal third party.
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MOTIONS TO DISMISS FOR FRAUD – A HISTORICAL PERSPECTIVE
Andrew D. Stone, Esq. & Jesse L. Cohen, Esq. • Volume 3, Issue 2 February 2009
WHAT IS THE STANDARD?
Under Florida law, in order to prevail on a motion to dismiss for fraud, defense counsel must demonstrate clearly and convincingly that the plaintiff has “sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate a matter”. Cox v. Burke, 706 So.2d 43 (5th DCA 1998)(quoting Aoude v. Mobile Oil Corp., 892 F.2d at 1118 (1st Cir.1989)).
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IN A MULTI-PARTY LAWSUIT, IS EVIDENCE OF A FORMER PARTY'S AGREEMENT TO SETTLE WITH PLAINTIFF ADMISSIBLE FOR IMPEACHMENT PURPOSES AT TRIAL?
Andrew D. Stone, Esq. & Jesse L. Cohen, Esq. • Volume 3, Issue 1 January 2009
INTRODUCTION
In Saleeby v. Rocky Elson Construction, 33 Fla. L. Weekly S106 (Fla.2009), the Supreme Court of Florida resolved a conflict between the 3rd and 4th DCA's and held that evidence of a settlement agreement between a former party to a lawsuit is inadmissible.
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