Thursday, February 24, 2011

Criminal law appeals, business disputes, insurance coverage with fresh tomatoes, basil and mozzarella


Miranda Const. Development, Inc. v. Mid-Continent Cas. Co. ,(S.D.Fla.)
Insurance - "Your work" exclusion in commercial general liability policy applied to claim for defective construction of home.
Under Florida law, the "your work" exclusion in a commercial general liability policy issued to an insured home builder applied to a claim against the insured seeking damages resulting from the insured's alleged defective construction of a home's foundation. Although the complaint alleged damage "including but limited to the flooring, trusses, roof, and walls," it was clear that the claim for damages related solely to the home itself and the insured's alleged defective construction. There were no allegations of damage to personal property or to property other than the home itself.

Torts -- Medical malpractice -- Birth-Related Neurological Injury Compensation Act -- Hospitals -- Where it was undisputed that the only attending obstetrician at time of infant's delivery was not a “participating physician” as defined by NICA, hospital was not protected by NICA from tort claim, even though hospital had given statutorily-required NICA notice -- Remedies and protections afforded by NICA are limited to those cases in which obstetric services were provided by participating physician at infant's birth
ORLANDO REGIONAL HEALTHCARE SYSTEM, INC., etc., Petitioner, v. SARAH GWYN AND BRIAN GWYN, etc., Respondents. 5th District.


Negligent Misrepresentation: PARENTS SEEK CHILD-REARING EXPENSES FOR BABY BORN AFTER FAILED VASECTOMY, Bassinger v. Oregon Healthcare Res., 6 No. 18 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice February 11, 2011
An Oregon couple who conceived a child after being told that the husband's vasectomy was successful are seeking more than $675,000 in child-rearing expenses from the doctor who allegedly botched the procedure. In a lawsuit filed in the Lane County Circuit Court, Scott and Donnita Bassinger allege Dr. Stephan Schepergerdes negligently misrepresented to them that a sperm count conducted after Scott's March 30, 2007, vasectomy confirmed he was sterile.

Failure to Warn: CALIFORNIA APPEALS COURT BACKS DISMISSAL OF SURGICAL TOOL INJURY SUIT, Courtenay v. U.S. Surgical Corp., 6 No. 18 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice February 11, 2011
A California appeals court has affirmed dismissal of a failure-to-warn suit against the maker of a gynecological surgical tool by a woman who says she was injured during a procedure to implant a supportive mesh device. Elisabeth Courtenay turned to the 2nd District Court of Appeal after a trial judge granted summary judgment to Tyco Healthcare Group and U.S. Surgical Corp.Her claims related to the use of the IVS Tunneller during a 2004 abdominal operation.

Legal Malpractice: MISSISSIPPI HIGH COURT REVIVES MALPRACTICE SUIT AGAINST ATTORNEY, Bennett v. Hill-Boren P.C., 6 No. 18 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice February 11, 2011
The Mississippi Supreme Court has ruled that a woman can pursue legal malpractice allegations against two attorneys who allegedly failed to serve a summons to a defendant in a wrongful-death lawsuit. The trial court incorrectly granted summary judgment to attorney Leonard B. Melvin Jr. on the ground that Mattie Bennett's and Dorothy Washington's malpractice claims were barred by a three-year statute of limitations, the Supreme Court ruled.

Intentional Acts: HERPES INFECTION NOT AN 'ACCIDENT,' NEW JERSEY APPEALS COURT RULES, D.V. v. N.J. Mfrs. Ins. Co., 21 No. 17 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage February 4, 2011
A New Jersey insurance company need not defend a policyholder in a lawsuit in which her ex-boyfriend alleges she intentionally failed to disclose her herpes infection to him, a state appellate court has ruled. The Superior Court Appellate Division upheld a lower court's decision that New Jersey Manufacturers Insurance Co. properly denied coverage to a policyholder identified only as "D.V."The court ruled that since D.V. knew she carried the herpes virus, transmission of the disease to her ex-boyfriend was not an accident.

Settlement Dispute: INSURER'S FINDING OF CONTRIBUTORY NEGLIGENCE COULD BE BAD FAITH, Zintel v. Progressive N. Ins. Co., 21 No. 17 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage February 4, 2011
An insurance carrier might have acted in bad faith when its agent calculated contributory negligence into a claim evaluation for a policyholder who was struck by a pickup truck, a Pennsylvania federal judge has ruled. U.S. District Judge James M. Munley of the Middle District of Pennsylvania said a reasonable jury could find that the insurer knew it lacked a reasonable basis to reduce its claim evaluation but did so anyway.

Civil rights -- Speech -- Retaliation -- Due process -- Former nursing student brought Section 1983 action against college and administrators alleging that her suspension from Licensed Practical Nursing Program violated her free speech and due process rights -- Qualified immunity -- Defendants were entitled to qualified immunity on claim that plaintiff was suspended in retaliation for reporting one of her instructors for falsifying attendance records, in violation of First Amendment, where there is factual dispute as to whether plaintiff's protected speech of reporting instructor was motivating factor in her suspension from Nursing Program, and, even if there was retaliatory motive, record establishes that school administrators also possessed lawful motive for suspending plaintiff and reasonably believed that they would have suspended plaintiff in absence of her protected speech because of her other conduct -- Under facts of case, district court did not err in deciding that, for qualified immunity purposes, school administrators in their position could have reasonably believed that suspending plaintiff would not violate her First Amendment free speech rights -- Defendants were entitled to qualified immunity on claim that plaintiff was suspended without meaningful opportunity to respond to charges against her in violation of Due Process Clause of Fourteenth Amendment -- Even though school administrators deprived plaintiff of pre-suspension hearing, based on facts of case, district court did not err in deciding that, for qualified immunity purposes, it was not clearly established at time plaintiff was suspended that the immediate availability of appeals process would not have adequately protected plaintiff's due process rights
SARA CASTLE, Plaintiff-Appellant, v. APPALACHIAN TECHNICAL COLLEGE, JASPER GEORGIA, In their individual and official capacities, et al., Defendants, JOAN THOMPSON, Vice President, in their individual and official capacities, DR. TRINA BOTELER, Executive Affairs Officer, in their individual and official capacities, Defendants-Appellees. 11th Circuit.

Contracts -- Real property sale -- Rescission -- Interstate Land Sales Full Disclosure Act -- District court did not err in dismissing complaint seeking rescission of land purchase contracts and damages pursuant to ILSA, after considering forum selection clause in purchase contracts designating Bahamas as exclusive venue for any litigation concerning or related to contract and finding that venue was foreclosed in Florida -- District court's enforcement of forum selection clause did not deprive plaintiffs of their right to choose the venue for their ILSA claims and was not contrary to public policy
KENNETH W. LILES, PATRICIA M. LILES, EDWARD R. WEBB, JAMES JOSEPHSON, WILLIAM J. ANDREWS, JR., MARK R. ROODVOETS, JON D. ANDREWS, CHARLES B. LESESNE, JERRY A. CICOLANI, JR., KRIS BRENEMAN, DANA F. BALLINGER, SUSAN KHERKHER, THOMAS E. LAMMERTSE, MARY L. SIPSKI, RONALD P. VAN, as trustee of the Ronald P. Van Jr. Revocable Trust, KATHY JO VAN, as trustee of the Kathy Jo Van Revocable Trust, Plaintiffs-Appellants, v. GINN-LA WEST END, LIMITED, ROBERT F. MASTER, II, EDWARD R. GINN, III, Defendants-Appellees, GINN FINANCIAL SERVICES, et al., Defendants. 11th Circuit.

Employer-employee relations -- Family and Medical Leave Act -- Interference with FMLA rights -- District court correctly found that employee's Department of Labor complaint did not bar her from filing civil action against employer for interfering with her statutory right to request medical leave and for firing her in retaliation for her protected leave request in violation of FMLA -- Agency regulations which allow an employee to file either agency complaint or civil suit, but not both, cannot contravene statute providing a right to a cause of action and specifically listing the limitations terminating the right of action -- District court correctly excluded causal nexus from recitation of elements of interference claim, but employer was entitled to raise lack of causation as affirmative defense -- Error in failing to give jury instruction on defense of lawful reasons for termination was harmless because jury specifically rejected defense in its special verdict
DIANE SPAKES, Plaintiff-Appellee, v. BROWARD COUNTY SHERIFF'S OFFICE, Defendant-Appellant. 11th Circuit.

Labor relations -- Fair Labor Standards Act -- Overtime -- Motor carrier exemption -- Shuttle service that provides ground transportation services to general public traveling to and from local airports was entitled to summary judgment on former shuttle driver's claim for overtime under Fair Labor Standards Act on ground that airport shuttle van drivers fall under motor carrier exemption to FLSA and therefore are exempt from FLSA's overtime provisions -- Plaintiff is subject to motor carrier exemption where undisputed evidence shows that shuttle service is subject to Secretary of Transportation's jurisdiction under Motor Carrier Act and plaintiff's work-related activities as airport shuttle driver directly affected safety of operation of motor vehicles in transportation of passengers on public highways in interstate commerce within meaning of Motor Carrier Act
STEVEN ABEL, on his own behalf and all others similarly situated, Plaintiff-Appellant, v. SOUTHERN SHUTTLE SERVICES, INC., a Florida Corporation, Defendant-Appellee. 11th Circuit.

Contracts -- Construction -- Agreement between contractor and subcontractor for subcontractor to manufacture staircase and flooring system for renovation being performed by contractor -- Trial court properly found that a valid contract existed although contractor did not sign subcontractor's final proposal where contractor accepted proposal by its actions of paying initial deposit and subsequently invoiced payments -- Where contract provided that subcontractor was to “engineer, fabricate and install” the staircase and flooring system, but also provided that the final progress payment was “due upon supervision of installation,” the contract was ambiguous as to whether subcontractor was to install the staircase and flooring system or only supervise the installation, and court properly allowed presentation of parol evidence to establish the parties' intent -- Judgment finding that contractor breached contract by failing to make a payment was internally inconsistent where court also found that the payment had not been invoiced by subcontractor -- Judgment finding contractor to be in breach of contract reversed
L & H CONSTRUCTION COMPANY, INC., Appellant, v. CIRCLE REDMONT, INC., Appellee. 5th District.

Counties -- Rezoning -- Inconsistency with comprehensive plan -- No error in entering summary judgment in favor of defendants in action challenging county's approval of application for rezoning of parcel to allow for automotive repair and service shop where automotive repair facility was an allowed use within the subject parcel's future land use category
D. DOUGLAS REHMAN, Appellant, v. LAKE COUNTY, FLORIDA, ET AL., Appellee. 5th District.

Child support -- Income -- Amount paid to father by Veteran's Administration for benefit of child should have been included in father's income and the total family income figure -- Remand for recalculation of child support
EDWARD W. MASLOW, Appellant, v. JULIANNE M. EDWARDS AND DEPARTMENT OF REVENUE, Appellee. 5th District.

Insurance -- Uninsured motorist -- Bad faith -- Error to lift abatement of bad faith claim while insurer's appeal of excess judgment was pending
ILLINOIS NATIONAL INSURANCE CO., Petitioner, v. PATRICIA BOLEN, Respondent. 5th District.

Insurance -- Uninsured motorist -- Umbrella policy -- Stacking -- Trial court properly determined that policy issued to insured who owned four automobiles was a non-stacking policy where a single premium was paid for coverage, and no separate premium paid for each automobile
NATHAN SIMMONS, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. 5th District.

Civil procedure -- Parties -- Anonymity -- Civil suit brought by anonymous plaintiffs for damages stemming from films produced by defendants in which plaintiffs, while under age of eighteen, exposed their breasts and engaged in sexually explicit acts -- District court abused discretion in denying plaintiffs' motion to proceed anonymously at trial where court incorrectly deemed some of plaintiffs' conduct “casual and voluntary” and improperly discounted expert evidence of harm that revealing their identities would cause the plaintiffs -- None of normal harms threatened to defendants when plaintiffs proceed anonymously are present in instant case -- Remanded for entry of order allowing plaintiffs to remain anonymous, subject to limitations posed by First Amendment on prior restraint on speech -- Appellate court would not address claim that requested limitations on press's ability to cover the trial constitute prior restraint in violation of First Amendment where district court had not addressed issue in first instance
PLAINTIFF B, Plaintiff-Appellant, FLORIDA FREEDOM NEWSPAPERS, INC., Intervenor-Appellee, PLAINTIFF J, PLAINTIFF S, PLAINTIFF V, Plaintiffs-Appellants, v. JOSEPH R. FRANCIS, MRA HOLDINGS LLC, MANTRA FILMS INC., AERO FALCONS, LLC, Defendants-Appellees. NATIONAL CRIME VICTIM LAW INSTITUTE, SOUTHERN NEWSPAPER PUBLISHER'S ASSOCIATION, Amicus Curiae. 11th Circuit.

Civil rights -- Prisoners -- Speech -- Retaliation -- State prisoner filed retaliation claim under 42 U.S.C. section 1983 alleging prison official violated his First Amendment rights when she disciplined prisoner for filing inmate grievance and for speaking to her in manner she found disrespective -- Error to grant summary judgment in favor of prison official where genuine issues of material fact remain as to causal relationship between inmate's use of large upper case letters in his grievance and discipline imposed, and as to causal relationship between inmate's statements to prison official about contacting his attorney and official's subsequent actions -- As matter of law, an inmate's statement that he wants or plans to contact his attorney does not constitute a punishable “spoken threat” -- Damages -- District court erred when it sua sponte granted summary judgment in favor of prison official on issue of compensatory damages where court did not provide notice that it intended to rule on compensatory damages claim during summary judgment proceedings
LEWIS MARTIN MOTON, JR., Plaintiff-Appellant, v. CAPTAIN B.E. COWART, Defendant-Appellee, W.O. SHEETZ, LT. PRIETO, Defendants. 11th Circuit.

Criminal law -- Sentencing -- Federal guidelines -- Career offender -- Prior convictions -- Error to sentence defendant as career offender where his prior conviction for cocaine trafficking did not constitute a controlled substance offense -- Because appellate court was required to assume that defendant's prior conviction involved only the purchase of cocaine where district court was unable to determine statutorily-prohibited act for which defendant was convicted, and because act of purchase is not included in definition of controlled substance offense under section 4B1.2(b), defendant's prior conviction was not a “controlled substance offense”
USA, Plaintiff-Appellee, v. JERMON SHANNON, JR., a.k.a. Winfield Winchester Roye, Defendant-Appellant. 11th Circuit.

Criminal law -- Sentencing -- Federal guidelines -- Offense level -- Error to include in offense level calculation a two-level enhancement for unduly influencing a minor to engage in prohibited sexual conduct, where only “minor” involved in case was undercover law enforcement officer posing as underage child -- Amendment 732, which became effective after date of defendant's sentencing hearing and states that undue influence enhancement does not apply when only “minor” involved is undercover officer, is clarifying amendment that should be applied retroactively to defendant's direct appeal of his sentence
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SETH JERCHOWER, Defendant-Appellant. 11th Circuit.

Criminal law -- Murder -- Death penalty -- Post conviction relief -- No error in concluding that defendant was not mentally retarded -- Circuit court erred in its application of standard error of measurement to one of defendant's IQ scores, and language of circuit court's order does not demonstrate beyond reasonable doubt that the error did not contribute to court's conclusion that defendant failed to establish subaverage intellectual functioning -- However, competent, substantial evidence supported circuit court's determination that defendant failed to establish deficient adaptive functioning -- Evidence -- Even if, as defendant claims, circuit court improperly allowed a number of documents to be admitted into evidence and improperly allowed a former defense expert to testify for the state, any error was harmless where language of order demonstrated beyond reasonable doubt that challenged evidence did not contribute to conclusion that defendant failed to establish mental retardation -- Court notes that, while post conviction court had authority to take judicial notice of prior post conviction proceeding and certain letters in court files, documents are still subject to same rules of evidence to which all evidence must adhere -- Further, it is important for attorneys to ensure that record reflects identifying information as to which piece of evidence is being referenced and addressed during proceeding
DONALD WILLIAM DUFOUR, Appellant, v. STATE OF FLORIDA, Appellee. Supreme Court of Florida.

Criminal law -- Sentencing -- Resentencing -- Guidelines departure sentence -- Decisions of U.S. Supreme Court in Apprendi v. New Jersey and Blakely v. Washington, under which a judge may impose sentence based solely on facts reflected in a jury verdict or admitted by defendant except for the fact of a prior conviction, apply to de novo resentencing proceedings that were not final when Apprendi and Blakely issued regardless of whether the defendant's conviction and sentence were final before Apprendi and Blakely issued
STATE OF FLORIDA, Petitioner, vs. CHRISTIAN FLEMING, Respondent. Supreme Court of Florida.

Criminal law -- Appellate counsel -- Ineffectiveness -- Although appellate counsel was deficient for failing to file motion to correct sentencing error which had not been preserved by trial counsel where defendant would have been entitled to relief under case law in effect at the time of defendant's appeal, defendant is not entitled to relief on claim of ineffective assistance of appellate counsel where that case law has been disapproved by Florida Supreme Court -- Question certified: When a petitioner clearly alleges deficient performance on the part of appellate counsel based on case law in effect at the time of the appeal that would have resulted in relief had appellate counsel raised the issue on appeal, but the case law upon which the petitioner bases the claim is subsequently disapproved, is the petitioner still prejudiced by appellate counsel's deficient performance and thus entitled to relief through a petition alleging ineffective assistance of appellate counsel?
DEANDRE T. WOODRUFF, Petitioner, v. STATE OF FLORIDA, Respondent. 2nd District.
 
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