cabinet water damageIn the recent case of Prepared Insurance Company v. Gal, the plaintiff appealed a lower court’s decision regarding a real estate contract and the liabilities associated with it. The insured was a homeowner who discovered that his kitchen sink leaked water, which caused damage to his custom-made cabinets. The insured filed a claim with the insurance company, which sent an adjuster to assess the damage. The report concluded that the cost to fix the cabinets would be $8,653.47, but this estimate did not include the general contractor’s overhead and profit.

A cabinetry expert also assessed the damage at the request of the insurer. He concluded that it would cost roughly $2,500 to fix the damage or almost $20,000 to replace the cabinets.  This cost estimate did not include the price of an electrician or plumber, who would both be necessary to finish the job. It also omitted the estimated cost for hiring a general contractor.

The insurance company tendered payment for $6,153.47 to the insured, reflecting an $8,653.27 cost less the insured’s deductible. The insured sued, claiming the insurer undervalued the damage because it did not pay for the replacement of the cabinets or the cost of a general contractor. In the meantime, the insured filed another claim for damage to the cabinets caused by a leaking air conditioner unit. The insured had a general contractor inspect the loss. This expert testified that the replacement of the cabinets would cost $107,902.50, due to their unique nature. This estimate failed to apportion the damage between the first leak and the second leak.

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witness statement closeupIn Selton, et al. v. Nelson, the Florida Fifth District Court of Appeals considered a hotly contested discovery issue. The plaintiffs filed a petition seeking a writ of certiorari to quash a lower court’s order compelling the plaintiffs to produce copies of sworn witness statements to the defendants. Certiorari is a remedy of last resort that a party can use to obtain review from a higher court during the pendency of a trial. An appellate court can grant a party’s request only when certain elements have been satisfied. First, the petitioner must show that there is a departure from the key requirements of the law, that a material injury would result that would affect the remainder of the litigation, and that the error is not something that could be addressed on appeal after the trial concludes.

The Fifth Circuit first stated its reasoning for granting the plaintiff’s petition for certiorari. In situations in which one party is being compelled to produce documents or information to another party, and the party that must produce the documents asserts a claim of privilege against production, certiorari is the appropriate method for review. A claim of privilege can be based either on the attorney-client privilege doctrine or the attorney work product doctrine. The party who resists production may suffer irreversible prejudice if he or she is required to share the information over his or her objection. Essentially, the party would be letting the “cat out of the bag.”

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divorced coupleIn Saucier v. Nowak, the father of a child appealed a lower court’s ruling that the majority of timesharing in a custody agreement should be awarded to the child’s mother. In his appeal, the father asserted several grounds of error on the trial court’s part. First, the father stated that the trial court failed to establish a schedule for video conferencing in the final judgment, failed to ascribe the correct salary to the father when determining the award of child support, failed to clarify which parent had the right to make medical decisions on behalf of the child, and failed to assign the majority of the timesharing allotment to the father.

The mother also filed an appeal regarding the final order, stating that the lower court committed a reversible error when it awarded the father the right to engage in daily video conferences with the child and failed to determine whether the father owed back child support.

On appeal, the Fifth District Court of Appeal upheld the lower court’s order when it awarded the father video conferencing time each day in the amount of 45 minutes. Although it was clear that the lower court wanted to award this right to the father, it failed to include a specific schedule for conducting the calls in its final order. The appellate court deemed this a discrepancy and remanded the case back to the lower court for further proceedings to amend the final order.

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movie theater seatIn Simmons v. Rave Motion Pictures Pensacola, LLC, the plaintiff attended a movie at a movie theater. During that visit, the seat in which he was sitting broke as the result of a failure of the welding on the bottom of the seat. The plaintiff fell through the seat and struck the floor, sustaining injuries. The plaintiff required surgery to address the injuries that he suffered during this accident. In his complaint, the plaintiff sued a number of entities, including the movie theater company and various construction companies that installed the seating equipment.

The defendants filed motions for summary judgment, claiming that the seat was not a product according to product liability law. Instead, the defendants argued that the chair should be categorized as an improvement to real property. Under this interpretation, strict liability would not apply. According to Florida product liability law, a product manufacturer is liable for any injuries that are the result of a design defect or manufacturing defect of its product. Unlike a negligence action, the plaintiff does not need to show carelessness or fault.

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house with magnifierIn the recent case of Marcinkiewicz v. Quattrocchi, the Third District Court of Appeals considered a case involving a property deed. The facts of the case are as follows. In 2007, the son had moved to Hawaii from Miami to move into the house where his mother was living, which is the property at issue in this case. The son moved to Miami with the understanding that he would be taking care of his mother and that she would someday give him ownership of the house. In 2009, the mother vacated the house and moved in with her daughter and son-in-law. The son continued living in the property. The mother continued to pay for expenses associated with the property while the son lived there. However, the son acquired tenants at the property and collected rent for their occupancy.

In 2010, the mother was declared legally incompetent, requiring the creation of a guardianship over her assets. Her daughter served as the guardian. The guardianship over her property was dissolved two years later, while a limited guardianship over her person persisted. This limited guardianship provided the daughter with the right to decide her mother’s medical treatment and location of residence.

Roughly one year later, the mother provided a property deed to her son-in-law instead of deeding the property to her son. The mother reportedly visited her attorney and requested that a quitclaim deed for the home be provided to the son-in-law. During trial, the son-in-law claimed he had no knowledge of the mother’s intention to do this.

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medical instrumentsIt is unfortunate, but we occasionally see instances where medical negligence causes a person to suffer from severe injuries which result in death. In these cases, surviving members of the victim’s family may bring a suit for wrongful death against the healthcare professional. While the financial costs of losing a loved one are significant, it is also an emotionally devastating event. The survivors of a patient deserve compensation for their mental pain and suffering, but have previously faced difficulties getting the full amount they deserve.

In Florida medical malpractice cases, a claimant is limited in recovering noneconomic damages. Noneconomic damages are those that do not compensate an injured person for their financial losses, but instead are compensation for pain and suffering, mental anguish, and physical impairment. An injured person generally is only allowed to recover a maximum of $500,000 in noneconomic damages. However, the law allows an award of up to $1 million if a medical professional’s negligence resulted in a permanent vegetative state or death of the patient. It is significant to understand that the law caps these damages at the listed amounts, regardless of the number of claimants involved.

Until now, these Florida laws have limited the amount of recovery in wrongful death cases. However, the Florida Supreme Court recently addressed the constitutionality of Florida’s damage caps and held that the limit on wrongful death noneconomic damage violates the Equal Protection Clause of Florida’s Constitution.

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Florida_I-95_from_Lantana_Road_overpassThere are many Federal and Florida state laws in place that protect drivers from accidents that occur as the result of a defective roadway design. Florida experiences a never-ending flux of tourist traffic and some of the highest rates of roadway construction in the country. This leads to many opportunities for defective roadway crashes to occur.

It can be very difficult to establish liability in a defective roadway design case, due to the large number of statutory protections that are afforded to the government entities that are responsible for designing our public roadways and highways. A recent Arizona Supreme Court decision, however, shows Florida residents that it is not entirely impossible for a plaintiff to recover compensation when his or her injuries are the direct result of a defective roadway design.

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DSC01353Florida is home to countless condominiums, homeowners’ associations, and cooperatives. These types of residences can offer convenient and affordable ways to live, but they often come with a bundle of laws and regulations that the homeowner may not know about. Earlier this year, Governor Rick Scott signed HB 791 into law, a bill that provides a package of new laws that affect the aforementioned types of residents. Taking effect on July 1, 2015, the bill creates several new laws that change the way homeowners’ associations and condominiums can go about their business.

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old womanIn Mendez, Jr. v. Hampton Court Nursing Center, LLC, the Supreme Court of Florida had the occasion to consider an important issue regarding arbitration clauses in nursing home contracts. The plaintiff, a personal representative of his father’s estate, appealed the Third District Court’s decision regarding when a convalescent hospital resident is bound by the terms of an arbitration term in a nursing home agreement when the resident did not sign or otherwise commit to the agreement.

The facts of the case are as follows. The son admitted his father to the defendant’s nursing home facility in 2009. At this time, he executed a nursing home residency contract on behalf of his father. The agreement contained a clause stating that any disputes regarding the care provided to the resident would be subject to arbitration as the exclusive remedy. The father did not sign the agreement.

During his residency at the defendant’s facility, the father contracted an eye infection that ultimately required the removal of his afflicted eye. Shortly thereafter, the son initiated a lawsuit against the nursing home on his father’s behalf, alleging statutory violations and negligence. The defendant responded to the complaint by filing a motion to compel arbitration, and the trial court granted this request. During the appeal, the father passed away.

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child's handsWhen it comes to children involved in car accidents, there are a number of special laws that apply to protect their interests. In the recent case of Allen v. Montalvan, et al., three children were injured in a car accident. The driver of the car in which the injured minors were riding was the grandmother of two of the children and the mother of the third. Unfortunately, the driver was killed in the accident. The other three passengers consisted of the mother and another minor child, both of whom suffered minor injuries in the accident.

Two days after the collision, the mother executed an agreement with a law firm to provide her family and her with legal representation, including the minor children injured in the accident. A term in this agreement provided the law firm with the right to handle legal claims on behalf of the minor children, including settlements. The law firm sent a letter to the family’s insurance carrier, requesting information about the policy’s coverage and limits. The insurance policy provided limits of $25,000 per person and $50,000 per incident.

The law firm had a discussion with the insurance carrier, the details of which are heavily disputed by both of the parties. According to the insurer, the employee with whom the law firm spoke said that the insurer would be tendering the policy limits to extinguish all bodily injury claims. She said the law firm requested two checks for $25,000 each, among other details. According to a lawyer at the firm, the conversation transpired differently. The insurer agreed to tender the full policy limit, but the parties did not discuss specific check and dollar amounts.

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