Every week, Scott J. Edwards, P.A. brings you this summary of selected opinions issued by Florida’s appellate courts in the previous week, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, technology, and personal injury litigation.  This article covers the week of February 1-5, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Police Officer Duty, Responsibility for Escaped Animals Manfre v. Shinkle (Fla. 5th DCA Feb. 5, 2016) In this case, Plaintiff was injured when her vehicle crashed after striking a dead horse on a public roadway. Earlier that evening, a sheriff’s deputy responded to a call that horses were roaming free on the road. When the deputy arrived on the scene, the horses were spooked by the lights on the deputy’s vehicle and returned to their pasture. The deputy made no effort to contact the owner of the horses or otherwise ensure that the horses were secure in their pasture. One of the horses later returned to the road, and was killed by another motorist before Plaintiff’s crash.

The Fifth DCA held that the Sheriff owed no duty to protect Plaintiff from the hazard caused by the escaped horses. Under the public duty doctrine, any tort duty owed by the government to an individual must be specific and beyond the general duty the governmental entity owes to the public as a whole. Therefore, because a sheriff’s duties to enforce the law and protect citizens apply to the public as a whole, a sheriff does not owe a duty to an individual who is injured by the sheriff’s failure to enforce the law or generally protect the public. Also, the deputy’s actions in this case did not create a foreseeable zone of risk, nor did his acts create liability under the undertaker’s doctrine. Indeed, the deputy’s response to the call reduced the risk of injury because he caused the horses to return to their pasture.

Property Insurance, Assignment of Benefits Bioscience West, Inc. v. Gulfstream Prop. & Cas. Co. (Fla. 1st DCA Feb. 5, 2016) In this first party property insurance case, the Second DCA held that an insurance company cannot prohibit its insured from assigning post-loss benefit under an insurance policy to a third party. The homeowners insurance policy at issue in this case contain a provision limiting the assignment of the policy without the insurer’s with written consent. The homeowner, after suffering water damage, hired a water mitigation service. The homeowner executed assignment of insurance benefits form authorizing the water mitigation company to directly bill and receive payment from the insurance company for the mitigation services. The insurance company denied the claim, leading to the the water mitigation company suing the insurer for wrongful denial of coverage.

The Second DCA held that the policy’s language only prohibits the assignment of an entire policy, and does not prohibit the assignment of specific post-loss benefits. The court rejected the insurer’s argument that the assignment of the claim violated Florida’s public adjusting statutes. The water mitigation company only performed emergency services; it did not adjust the claim and did not determine the amount due under the policy. Finally, Florida over 100 years of Florida case law has held that an insurance company cannot prohibit post-loss assignments of benefits.

Construction Defect, Damages Gray v. Mark Hall Homes, Inc. (Fla. 2d DCA Feb. 5, 2016) In this construction defect case, the contractor constructed a single-family house without flashing connecting the roof to the walls, causing extensive water intrusion damage. Indeed, the damage to the home was so bad that numerous witnesses testified that the home was worthless, was among the worst that they had ever seen, was uninsurable, that no bank would allow a mortgage on the property, and that the owner was better off bulldozing the property and starting anew. At trial, the jury awarded the owner damages equal to the entire amount of the construction contract.

Nonetheless, the trial judge reduced Plaintiff’s award $16,000, reasoning that the only evidence of damage was testimony of a general contractor who testified that a balcony was replaced for $16,000. The Second DCA reversed, holding that the jury’s verdict should be reinstated.  Under Florida law, there are two valid ways to measure breach of contract damages for defective construction. First, a jury can award the reasonable cost of construction to complete the work as described in the contract. Alternatively, a jury can award the difference between the value of the product described in the contract, and the value of the defective product actually delivered by the contractor. The purpose of  money damages is to put the injured party in as good a position as if full performance had occurred. Therefore, it was proper for the jury to award damages by concluding that the house contractor built was worthless.

Objections, Preservation of Error Aris v. Applebaum (Fla. 3d DCA Feb. 3, 2016): A party objected to a clearly improper question asked by opposing counsel during trial. The court sustained the objection, the question was stricken, and the jury was instructed to ignore the question. However, the party failed to preserve its objection to the question for a motion for new trial or appellate review because it did not make a contemporaneous motion for mistrial. The Third DCA noted that in this situation, a party may move for mistrial, but can also request that the trial court reserve ruling on the motion for mistrial until after the verdict is returned.

Class Certification, Delay Osborne v. Emmer (Fla. 4th DCA Feb. 3, 2016) Florida Rule of Civil Procedure 1.220(d)(1) requires that class representation be pursued as soon as practicable after a pleading alleges a class action. Here, the trial court did not err by denying class certification when more than five years had passed without Plaintiff attempting to certify the class.

EDWARDS-SMALL_002511Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.