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, and personal injury litigation.  This article covers the weeks of December 7-18, 2015.  Click here to learn more about Scott Edwards’ appellate law services.

Expert Witnesses, Daubert Standard Baan v. Columbia County (Fla. 1st DCA Dec. 8, 2015): In a wrongful death case, the trial court excluded the plaintiff’s expert witness, who testified that paramedics failed to follow the appropriate standard of care when responding to an infant experiencing respiratory distress. The trial court excluded the expert’s opinion under the Daubert standard as speculative and for improperly rejecting the truth of the paramedic’s report. The First DCA reversed on two grounds. First, an expert may rely on any view of disputed facts that the evidence will support. Thus, a trial court cannot exclude an expert’s opinion because it disagrees with an expert’s interpretation of disputed facts. Second, the expert’s opinion did not violate Daubert’s prohibition on “pure opinion testimony.” The expert’s opinion was based on his extensive experience as an emergency room doctor treating children’s respiratory problems. The expert’s opinion was further based upon the paramedics’ violation of their own protocols.

The First DCA also reaffirmed that the Daubert standard must be followed by trial court’s within the First District’s jurisdiction. The Daubert standard was previously adopted in Giaimo v. Fla. Autosport, Inc., 154 So. 3d 385, 388 (Fla. 1st DCA 2014), and must be followed unless a party challenges the constitutionality of the legislature’s amendment of the evidence code.

Insurance, Valued Policy Law Freeman v. American Integrity Insurance Co. (Fla. 1st DCA Dec. 11, 2015): The owners of a mobile home and their insurer disputed the amount of the loss that should be paid due to vandalism of the home. The parties participated in the appraisal process required under the policy. Pursuant to the appraisal, all three appraisers agreed that the home was a total loss, but concluded that the value of the loss was only about 50% of the insured amount under the policy. The trial court entered a summary judgment order upholding the appraisal award. The First DCA reversed, holding that the trial court did not properly apply Florida’s Valued Policy Law. The Valued Policy Law requires that, if a building covered by insurance is deemed a total loss, the insurance company must pay the full coverage amount listed in the policy. The law promotes clarity and predictability for all parties by fixing the property’s value in advance. The Valued Policy Law trumps an insurance policy’s provisions regarding appraisal awards.

Insurance, Hurricanes, Additional Living Expenses State Farm v. Moody (Fla. 4th DCA Dec. 9, 2015) In two consolidated cases, the insureds held identical homeowner’s policies on their condos. The policies contained a Hurricane Coverage Endorsement, which limited additional living expenses (ALE) to 10% of the personal property coverage limit if the loss is caused by a hurricane. The condos were damaged during Hurricane Jeanne, and the insurer paid its insured the full policy limits for ALE under the Hurricane Coverage Endorsement. The insureds sued, claiming that the losses to their units were not caused by a hurricane, but instead by a tornado or microburst. Thus, they argued that they were entitled to the higher policy limits for ALE for a non-hurricane loss. The 4th DCA held that, under the language of the policy, when a storm system is declared to be a hurricane, the entire named storm system, including the elements of the storm constitutes the hurricane. Thus, even if the loss is caused by a tornado within a hurricane storm system, a hurricane endorsement applies to the claim.


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Evidence Soto v. McCulley Marine Services  (Fla. 2d DCA Dec. 16, 2015): In a wrongful death action, the plaintiff alleged that a tugboat and barge were negligently moored in a pass, diverting currents in the pass and causing the decedent’s drowning. In response to a juror’s question, the court informed the jury that the tugboat’s captain did not receive a marine patrol citation for his conduct during the incident. The Second DCA reversed because it is well established that the failure to receive a citation is not admissible into evidence in a negligence action.

Requests for Admissions PennyMac v. Labeau (Fla. 3d DCA Dec. 16, 2015) A party failed to timely answer requests for admission, and did not seek an extension of time. The party ultimately answered the requests three months late, denying all of the requests. The opposing party never moved to strike the admissions as untimely. The trial court granted the opposing party’s motion for involuntary dismissal based upon the technical admissions caused by the failure to respond. The Third DCA reversed, holding that there is a liberal standard for relief from technical admissions, as disputed claims should be decided on the merits. The party’s pleadings and discovery responses clearly contradicted the technical admissions, and there was no showing that the opposing party was prejudiced by the failure to answer the admissions.

Prevailing Party Cost Awards Field Club v. Alario (Fla. 2d DCA Dec. 9, 2015): A cost award to a prevailing party was reversed to the extent the trial court awarded costs for real-time court reporting and overhead costs, which are not permitted under the Statewide Uniform Guidelines for Taxation of Costs. Furthermore, taxation of costs for expert witness fees was also error because the prevailing party failed to prove the reasonableness of the expert witness fees.

Pretrial Witness Disclosure Deutsche Bank v. Perez (Fla. 3d DCA Dec. 9, 2015) A trial court struck a party’s corporate representative as a witness. The party’s pretrial witness disclosure stated that a corporate representative would be a witness at trial, but did not identify the witness by name. The trial court’s order was reversed because the court failed to make any findings of prejudice or surprise to the opposing party.

Removal of Judge from Office Inquiry Concerning Judge John C. Murphy (Fla. Dec. 17, 2015): In a 2014 incident, Judge Murphy threatened to commit violence against an assistant public defender, engaged in a physical altercation with the public defender, and thereafter resumed his docket, leaving criminal defendants without counsel. The Florida Supreme Court removed Judge Murphy from office, as this severe misconduct eroded public faith in the courts, and caused a national spectacle and embarrassment to Florida’s judicial system.

Hague Convention, International Service of Process Portalp Int’l SAS v. Zuloaga (Fla. 2d DCA Dec. 18, 2015) Under article 10(a) of the Hague Convention, service of process overseas can be accomplished by mail if the destination country has not objected.


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, and insurance law.  He can be reached at scott@scottjedwards.com or 561-331-0779.