Legal book and document with scales of justice and gavel

Scott J Edwards, P.A. provides monthly case updates on Florida appellate court decisions, with a focus on cases relevant to civil litigation matters.

Expert Witness Opinion Testimony In re Amendments to the Florida Evidence Code (Fla. May 23, 2019) In a sua sponte ruling, the Florida Supreme Court revisited the court’s prior decisions reaffirming that the Frye standard applied to the evaluation of the admissibility of expert witness opinion testimony. A majority of the court, invoking its inherent rulemaking authority, has now ruled that the Daubert standard applies in Florida, effective immediately.

Insurance Appraisals State Farm Florida Ins. Co. v. Sheppard (Fla. 1st DCA Apr. 29, 2019) If an insurer admits that there are at least some covered damages, the insurer’s partial denial of a claim is an “amount of loss” question subject to appraisal. However, if an insurer completely denies coverage, causation of the loss is a coverage question for the court. Thus, in this case, the insurer’s motion to compel appraisal should have been granted because it agreed that part of the loss was covered under the policy.

Proposals for SettlementSuarez v. Citizens Prop. Ins. Co. (Fla. 3d DCA May 8, 2019) In a first party insurance action, an insurer’s proposal for settlement was valid despite the insured including a declaratory judgment count in its complaint. The Third DCA held that the trial court correctly determined that the “real issue” in the case was a claim for breach of contract and money damages. However, the fee award recovered by the insurer due to its successful proposal for settlement could not exceed the amount actually incurred by the insurance company.

Findings of Fact, Motion to Intervene Troncoso v. Larrain (Fla. 3d DCA May 8, 2019) An order on a motion to intervene requires a trial court to make findings of facts on numerous factors. Thus, a trial court committed reversible error by denying a motion to intervene without holding a hearing, and without making any findings of facts in its order.

Sanctions and Dismissal Almazan v. Estate of Aguilera-Valdez (Fla. 4th DCA May 8, 2019) Because a voluntary dismissal of an action removes the trial court’s jurisdiction, the trial court did not have the authority to impose sanctions on its own initiative after a voluntary dismissal was filed.

Expert Discovery, Part I: Discovery of Relationship Between Plaintiff’s Attorney and Treating Physician Bellezza v. Menendez (Fla. 4th DCA May 8, 2019) A trial court erred by allowing evidence of a plaintiff law firm’s relationship with the plaintiff’s treating physician. Although this information was discoverable at the time discovery was allowed, a subsequent Florida Supreme Court opinion held that such information was protected by the attorney-client privilege. The trial court nonetheless allowed the evidence to be admitted at trial over the plaintiff’s objection, concluding that “the horse had left the barn.” Because this information is privileged, a party is forbidden from discovering it, as well as using it as evidence. The trial court further erred by compelling the plaintiff’s lawyer to testify at trial about the firm’s relationship with the treating physicians.

Expert Discovery, Part II: Discovery of Relationship Between Defendant’s Attorney and Medical Expert Salber v. Frye (Fla. 5th DCA May 10, 2019). In contrast to the previous case, a plaintiff is still allowed discovery under current law regarding the relationships between a defense lawyer, an insurance company, and defense experts. However, the Fifth DCA noted its concern that the law on this question is not being applied in an even-handed matter as to all litigants. Thus, the Fifth DCA certified as a question of great public importance whether defense law firms or insurance companies should be compelled to disclose financial relationships with retained experts.

Expert Discovery, Part III: The Supreme Court Steps In Younkin v. Blackwelder (Fla. May 21, 2019) The Florida Supreme Court has accepted jurisdiction in this case, which will evaluate the issues raised in the cases above.

Personal Jurisdiction, Tort Committed in Florida Kaminsky v. Hecht (Fla. 4th DCA May 8, 2019) The beneficiaries of a trust sued the trustee in Florida, alleging various breaches of fiduciary duty. However, there was no personal jurisdiction in Florida because the trust was administered only in New York and New Jersey, and there were no allegations of acts or misconduct in Florida. Mere injury in Florida resulting from a tort committed elsewhere does not create personal jurisdiction.

Reopening Evidence, Dissolution of Marriage Manko v. Manko (Fla. 5th DCA May 10, 2019) In a nonjury trial, a party may seek to reopen the evidence by filing a timely motion for rehearing. The trial court has the discretion to reopen the evidence if the presentation of the evidence will not unfairly prejudice the opposing party, and if reopening the evidence will serve the best interests of justice. Thus, in this dissolution of marriage case, the trial court abused its discretion by denying the former husband’s request to reopen the judgment to submit evidence that he could not obtain life insurance due to a medical condition.

Construction, Statute of Repose Manney v. MBV Engineering, Inc. (Fla. 5th DCA May 10, 2019) The purchaser of a newly-constructed home hired an engineering firm to inspect for structural defects. Thirteen years later, the purchaser sued the firm for negligently performing the inspection. The trial court granted the firm’s motion for judgment on the pleadings, ruling that Florida’s statute of repose barred the claim. Under the statute of repose, a claim founded on the design, planning, or construction of an improvement to real property must be brought within 10 years of the owner taking possession. The Fifth DCA reversed: because firm was alleged to have performed a negligent inspection of a completed structure, its work did not arise out of the design, planning, or construction of the home.

Punitive Damages Tallahassee Memorial Healthcare, Inc. v. Dukes (Fla. 1st DCA May 16, 2019) In order to bring a punitive damages claim against a corporate entity based on an employee’s conduct, a plaintiff must show that the officers, directors, or managers of the company knowingly condoned, ratified, or consented to the conduct. Thus, the conduct of low-level supervisory employees does not expose a company to a punitive damages claim unless corporate management knowingly condoned, ratified, or consented to the conduct. In this case, an emergency room “director” was a low-level supervisor, not corporate management. Thus, allegations that the director made defamatory comments could not expose the company to a punitive damages claim.

Settlement, Prevailing Party Attorney’s Fees Valencia Golf and Country Club Homeowner’s Ass’n v. Community Resource Services, Inc. (Fla. 2d DCA May 22, 2019) If a party voluntarily dismisses a complaint due to settlement, neither party is the “prevailing party” for the purposes of an attorney’s fee award.

Waiver of Arbitration SHP Harbour Island, LLC v. Boylan (Fla. 5th DCA May 24, 2019) Engaging in discovery on the merits of an action is inconsistent with an arbitration request, and thus waives the right to compel arbitration.

About Scott J. Edwards, Esq.

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Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, insurance law, and jurisdictional issues.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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