FLORIDA COURT GIVES DEFENSE DISCOVERY TOOL TO USE AGAINST ABUSIVE LETTER OF PROTECTION PRACTICES
By: Andrew D. Stone, Esq. • Volume 5, Issue 12 December 2011

INTRO
Letters of protection, also referred to as “litigation plans”, are financial agreements between plaintiffs and their treating doctors wherein the doctors agree to provide the plaintiffs with medical care in exchange for the plaintiffs' agreement to pay for their healthcare out of the proceeds of their settlement or judgment.
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THE EFFECT OF "HINDSIGHT BIAS" IN THE DEFENSE OF PERSONAL INJURY LAWSUITS
By: Andrew D. Stone, Esq. • Volume 5, Issue 11 November 2011

WHAT IS "HINDSIGHT BIAS"?
Social scientists have defined "hindsight bias" as the difficulty in ignoring a known outcome when attempting to determine the chances of it happening before it occurred.
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FLORIDA FEDERAL COURT APPLIES FLORIDA SLIP AND FALL STATUTE RETROACTIVELY: YATES V. WAL-MART
By: Andrew D. Stone, Esq. • Volume 5, Issue 10 October 2011

INTRODUCTION
In Yates v. Wal-Mart, 2010 WL 4318795 (U.S. District N.D. 2010), the plaintiff was an invitee on Wal-Mart's business premises when she slipped and fell on a “transient foreign substance”.
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THE MERE PRESENCE OF WATER ON THE FLOOR IS NOT ENOUGH – FLORIDA COURT ENFORCES NOTICE DEFENSE
By: Andrew D. Stone, Esq. • Volume 5, Issue 9 September 2011

INTRODUCTION
In Delgado v. Laundromax, 65 So.3d 1087 (Fla. 3 rd DCA 2011), the 3rd DCA enforced the notice defense and upheld a Dade County trial judge's decision to dismiss a slip and fall lawsuit as a matter of law.
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FLORIDA'S “ALCOHOL OR DRUG DEFENSE” IS FACING CONSTITUTIONAL CHALLENGE
By: Andrew D. Stone, Esq. • Volume 5, Issue 8 August 2011

INTRODUCTION
Florida's “alcohol or drug defense” has been in effect since October 1, 1999. However, it has recently been subject to challenge by the plaintiff's bar.
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ANOTHER MINE IN THE PROPOSAL FOR SETTLEMENT FIELD
By: Andrew D. Stone, Esq. • Volume 5, Issue 7 July 2011

INTRODUCTION
As we have reported in previous newsletters, the validity and/or enforceability of proposals for settlement has been repeatedly challenged in Florida. Accordingly, while the proposal for settlement statute was meant to be a tool to encourage reasonable settlements and to avoid protracted litigation, it has had the opposite effect. We have found this to be the case because courts have frequently found ways to avoid enforcing proposals against plaintiffs when defendants have beaten their offers.
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FLORIDA’S NON-JOINDER STATUTE: §627.4136(1)
By: Andrew D. Stone, Esq. • Volume 5, Issue 6 June 2011

INTRODUCTION
Florida’s non-joinder statute is set forth in §627.4136(1) and states:
It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action.
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FLORIDA TRIAL COURT RELIES UPON PROXIMATE CAUSE ANALYSIS AND GRANTS SUMMARY JUDGMENT IN NEGLIGENCE CASE
By: Andrew D. Stone, Esq. • Volume 5, Issue 5 May 2011

FACTS
The accident that was the subject of the lawsuit involved a nine year old girl who was an invitee on Defendant’s premises. At the time of the accident, she was watching her step-sister participate in an after-school cheerleading practice. After several minutes, she was joined by a few of her friends.
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THE "RES IPSA LOQUITUR" DOCTRINE AND ITS IMPLICATIONS IN PREMISES LIABILITY CASES
By: Andrew D. Stone, Esq. • Volume 5, Issue 4 April 2011

WHAT IS RES IPSA?
Res Ipsa Loquitur (“Res Ipsa”) is a latin phrase which literally means “the thing speaks for itself”. Under Florida Law, the Res Ipsa principle allows a jury to infer that the defendant was negligent when the plaintiff cannot present any direct evidence to prove their case. Goodyear Tire & Rubber Co. v. Hughes Supply, Inc. , 358 So.2d 1339 ( Fla. 1978). In other words, it allows juries to find fault against defendants based upon circumstantial evidence showing simply that an accident occurred.
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STATUS MATTERS : THE DUTY OWED TO PLAINTIFFS IN PREMISES LIABILITY CASES
By: Andrew D. Stone, Esq. • Volume 5, Issue 3 March 2011

INTRODUCTION
When evaluating a premises liability case, it is important to make sure that a fundamental question is asked: What was the plaintiff doing on the defendant’s property at the time of the subject accident? The answer to this question will dictate the extent of the duty that the defendant owed to the plaintiff when the accident occurred.
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HOW TO NAVIGATE FLORIDA LAW REGARDING PROPOSALS FOR SETTLEMENT IN MULTI-PARTY LAWSUITS – THE RECENT AMENDMENT TO FLA.R.CIV.P. 1.442
By: Andrew D. Stone, Esq. • Volume 5, Issue 2 February 2011

INTRODUCTION
While the policy underlying Florida 's proposal for settlement law was to reduce litigation costs and conserve judicial resources, instead the law has resulted in a proliferation of litigation over the validity and enforceability of proposals. See Attorney's Title Insurance Trust Fund, Inc. v. Gorka , 36 So.3d 646 ( Fla. 2010).
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DOES THE COLLATERAL SOURCE EVIDENTIARY RULE APPLY WHEN THE PLAINTIFF’S MEDICAL BILLS ARE PAID BY A PRIVATE HEALTH INSURER – NATIONWIDE V. HARRELL?
By: Andrew D. Stone, Esq. • Volume 5, Issue 1 January 2011

INTRODUCTION
When the plaintiff’s health insurer pays for a contractually reduced portion of the medical bills, one of the critical evaluation points is whether the full amount of the plaintiff’s medical expenses is “boardable” at trial.
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MEASURING COMPENSATORY DAMAGES FOR PERSONAL PROPERTY: A BRIEF OVERVIEW OF THE PROPER MEASURES OF DAMAGES
By: Hugh J. Connolly, Esq. • Volume 4, Issue 12 December 2010

INTRODUCTION
In our September 2010 newsletter we focused on how to evaluate damages to real property, such as land or homes. In this issue, we focus on how to evaluate damages to personal property, such as clothing, consumer goods, and furniture.
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DEFENSE STRATEGY TO EMPLOY WHEN HOSPITAL BILLS ARE LITIGATION DRIVEN RATHER THAN BEING REFLECTIVE OF COMMUNITY STANDARDS
By: Andrew D. Stone, Esq. • Volume 4, Issue 11 November 2010

INTRODUCTION
Florida medical providers are continuing to attempt to maximize their reimbursements
when they become aware that their patients are involved in litigation. In our September
2008 newsletter, we focused on defense strategies to employ when plaintiff’s physicians
choose to enter into letter of protection contracts rather than submitting their bills to the
plaintiff’s health insurer.
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THE EFFECTIVE USE OF PROPOSALS FOR SETTLEMENT AS PART OF AN OVERALL DEFENSE STRATEGY IN ACHIEVING FAVORABLE RESULTS
By: Andrew D. Stone, Esq. • Volume 4, Issue 10 October 2010

INTRODUCTION
We have found that judges oftentimes are reluctant to enforce Proposals for Settlement (PFS) when Defendants are requesting that they be enforced against Plaintiffs.
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MEASURING COMPENSATORY DAMAGES FOR REAL PROPERTY: Diminution In Value vs. Repair Or Restoration
By: Hugh J. Connolly, Esq. • Volume 4, Issue 9 September 2010

INTRODUCTION
The objective of compensatory damages is to make the injured party whole to the extent that it is possible to measure an injury in terms of money. With respect to damaged real property, damages are measured by either the property’s diminution in value or the costs of repairing or restoring the property to its condition prior to the loss.
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RECENT AMENDMENTS TO FLORIDA STATUTE §549.09 & §744.301 : ARE PRE-ACCIDENT WAIVERS OF LIABILITY AS TI MINORS ENGAGED IN COMMERCIAL ACTIVITIES ENFORCEABLE IN FLORIDA?
By: Ronald Stump, Esq. & Andrew Stone, Esq. • Volume 4, Issue 8 August 2010

INTRODUCTION
On April 27, 2010, Governor Crist signed Florida Senate Bill 2440 into law. The new bill served to amend the language of existing Florida Statute §549.09 & §744.301. The bill apparently sought to restore parental authority to release, in advance, the tort claims of their children for injury or death arising from their participation in commercial activities such as motorsports, challenge courses, paintball, and rock climbing.
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THE DUTY TO DEFEND: TWO RECOGNIZED EXCEPTIONS TO THE FOUR CORNERS RULE
By Hugh J. Connolly, Esq. • Volume 4, Issue 7 July 2010

INTRODUCTION
In Florida , a liability insurer's obligation to defend a claim made against its insured is generally determined solely from the allegations of a fairly pled complaint. The duty to defend arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage, and if the allegations of the complaint leave any doubt regarding the duty to defend, the insurer is required to afford a defense.
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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