Wednesday, December 2, 2009

Hospitals, wrongful death, declaratory judgments and business over fresh salad greens

Declaratory judgment -- Insurance -- Liability -- Coverage -- Liability policy at issue was claims made and reported policy, not an occurrence policy -- Defendant whose consumption of dietary supplement formulated by insured caused liver problems which necessitated a liver transplant and subsequent medical treatment suffered an ongoing bodily injury that spanned both periods in Retroactive Date Endorsement of liability policy at issue, entitling her to $1 million policy limits in effect during first claims period and $4 million policy limits in effect during subsequent claims period
Reported at 22 Fla. L. Weekly Fed. D110a

Torts -- Negligence -- Action by stunt driver who was injured during performance when dip in dirt right in front of ramp caused his car to lose speed and to fall short of catch cars, alleging that the event producer's crew was grossly negligent in failing to ensure that the ramp approach was properly smoothed and that person in charge of agenda was negligent for refusing to adjust time schedule to allow enough time to prepare ramp approach before plaintiff's stunt -- Release -- Although contract between the parties contained provision releasing defendant from liability for any claim arising out of stunt show, whether caused by negligence “or otherwise, and this language has been interpreted as including gross negligence, the release barring recovery for gross negligence is unenforceable under circumstances because of Florida statute prohibiting the operator of a closed-course motorsports facility to disclaim liability for gross negligence -- Football stadium at which stunt was performed was equivalent of closed-course motorsports facility under facts of case -- Whether defendants' conduct amounted to gross negligence is question for jury in this case
Reported at 22 Fla. L. Weekly Fed. D109a

Venue -- Torts -- Interference with business relationship -- Venue is improper in Southern District of Florida where plaintiff failed to allege that defendants' tortious conduct, or any acts with a close nexus to tortious conduct, occurred within Southern District -- Proper focus of venue inquiry is on relevant activities of defendants, not plaintiff's conduct -- Case transferred to Northern District of Georgia. the judicial district in which all defendants reside
Reported at 22 Fla. L. Weekly Fed. D113a

Criminal law -- Search and seizure -- Prescription records -- Error to grant motion to suppress records obtained from a pharmacy by an investigating law enforcement officer -- Section 893.07(4) requires pharmacies to make controlled substance records available to law enforcement officers and does not require pharmacies to notify the patient or withhold such records until a warrant is presented -- Federal Health Insurance Portability and Accountability Act does not constitute legal basis for suppression of records at issue -- Privacy provision of Florida Constitution does not support suppression of records in this case
Reported at 34 Fla. L. Weekly D2466a

Administrative law -- Florida Housing Finance Corporation -- Rejection of application for funding to build affordable housing -- Florida Housing Finance Corporation impaired the fairness of the proceedings before hearing officer by failing to index an order in a previous case and post it to the public where the previous decision was relevant and could have changed the outcome of the case had applicant and the hearing officer had benefit of the decision
Reported at 34 Fla. L. Weekly D2469a

Contracts -- Damages -- Defendant's breach of contract by failing to have plaintiff named as additional insured on policies obtained by defendant, with result that plaintiff had to settle personal injury action against it after defendant's insurer refused to defend -- Where plaintiff had filed unsuccessful declaratory judgment action seeking declaration that defendant's insurer had duty to defend and provide coverage to plaintiff, trial court did not err in allowing jury in breach of contract action to award attorney's fees and costs incurred by plaintiff in declaratory judgment action -- Prejudgment interest -- Trial court erred in failing to award prejudgment interest on entire jury verdict, including portions attributable to attorney's fees and costs incurred in personal injury action against plaintiff and declaratory judgment action
Reported at 34 Fla. L. Weekly D2467b

Workers' compensation -- Contribution -- Limitation of actions -- Carrier which was at risk at time of claimant's second accident was not entitled to contribution from carrier at risk at time of first accident for benefits second carrier voluntarily paid for care and treatment which was ultimately found to be wholly related to first accident where statute of limitations expired on first accident by the time of the occurrence of second accident -- Second carrier could not revive statute of limitations by merely providing benefits
Reported at 34 Fla. L. Weekly D2465a

Wrongful death -- Hospitals -- Action against hospital alleging that hospital had legal duty to decedent that was breached by its negligent hiring and supervision of surgical nurse employed by hospital who murdered decedent with an injection of hazardous controlled drugs -- Error to dismiss complaint for failure to allege a legal duty owed to decedent by defendant -- Allegations that defendant knew or should have known of the risk of unsupervised release of hazardous controlled drugs under its control, that a reasonable medical care provider like defendant would understand that the public would be exposed to risk of harm unless procedures and actions were undertaken to guard against the risk of unauthorized removal of hazardous drugs from its control without a doctor's prescription, and that the death of decedent was a foreseeable consequence of defendant's failure to use reasonable care in the hiring and supervision of nurse, were sufficient to establish a duty of care
Reported at 34 Fla. L. Weekly D2470b

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