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Every week, Scott J. Edwards, P.A. brings you this summary of selected opinions issued by Florida’s appellate courts in the previous week, with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, and personal injury litigation.  This article covers the week of September 21-25, 2015.

Insurance Coverage & Chinese Drywall Peek v. American Integrity Insurance (2d DCA Sept. 25, 2015): The insureds discovered soon after moving into their newly-built home that it had been constructed with Chinese drywall. The insureds made a claim with their homeowner’s insurer, who denied coverage because losses associated with Chinese drywall fell into several policy exclusions.  2nd DCA affirmed a trial court’s directed verdict after the insureds failed to present evidence that the loss was caused by a covered peril. To determine whether coverage exists in a first party action, the insured must prove that the efficient proximate cause of the loss is a covered peril, and is not an excluded peril. There was no dispute at trial that the Chinese drywall contained elemental sulfur at the time of its manufacture, and emitted sulfur gas. Although some evidence showed that humidity could have accelerated the emission of sulfur gas, there was no evidence that humidity proximately caused the gas emission. Furthermore, the insurer proved that the emission of sulfur gas due to Chinese drywall fell into the policy’s exclusions for losses caused by latent defects, pollution, and contaminants.

Punitive Damages Amendments Petri Positive Pest Control v. CCM Condominium Ass’n (4th DCA Sept. 24, 2015) A defendant has a positive legal right to not be subjected to financial worth discovery unless the trial court has made an affirmative finding that there is a reasonable evidentiary basis for presenting a punitive damages claim to the jury. In this case, a trial court’s granting of a motion to amend the complaint to allege punitive damages was quashed due to the trial court’s failure to announce the specific evidentiary basis for allowing punitive damages.

Settlements & Global Releases Sugar v. Estate of Stern (3d DCA Sept. 24, 2015): As always, Florida public policy strongly favors settlement agreements, and will seek to enforce them whenever possible. In this case, a global settlement agreement was reached by feuding relatives in a highly contentious estate litigation case. Later, some of the parties to the settlement tried to nullify the agreement due to alleged misrepresentations made by another party in the settlement negotiations. Statements made during settlement negotiations concerning liability or value are privileged, and are inadmissible in subsequent proceedings in the same case. Moreover, where parties are negotiating a settlement agreement at arm’s length of claims alleging fraud, misconduct, or dishonesty, there is no duty for a party to reveal the true facts to its adversary.

Medical Negligence Expert Testimony Cantore v. West Boca Medical Center (4th DCA Sept. 24, 2015) A physician in a medical negligence case cannot attempt to avoid liability by presenting testimony of a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care. However in this case, the testimony at issue was not from a subsequent treating physician, but from a co-treating physician who was consulting with the defendant physician throughout the incident at issue. Thus, the co-treating physician was properly permitted to answer hypothetical questions about his own decision-making process and the impact different decisions by him would have had on the patient’s medical condition. In affirming a jury verdict against the patient, the 4th DCA concluded: “This is a sad case which emphasizes that bad things sometimes just happen in life and it is nobody’s fault.”

Appellate Costs & Attorney’s Fees Garcia v. Collazo (3d DCA Sept. 24, 2015): Motions for appellate costs must be filed in the lower tribunal after jurisdiction has been returned to the lower tribunal after the appellate court’s mandate. Appellate attorney’s fees are only available if there is an independent statutory, contractual, or other substantial basis for an award of attorney’s fees. Appellate attorney’s fees must be requested by filing a separate motion.

For Profit Lawyer Referral Services In Re Amendments to Rule 4-7.22 (Fla. Sept. 24, 2015): Holding that the public is at significant risk from for-profit lawyer referral services that also refer clients to other businesses, the Florida Supreme Court has directed the Florida Bar to draft rules that would forbid lawyers from accepting referrals from any lawyer referral service not owned or operated by a member of the Florida bar.

Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, and insurance law.  He can be reached at scott@scottjedwards.com or 561-331-0779.

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