Friday, November 18, 2011

Insurance and torts, tobacco, procedural due process over angel hair pasta, tossed with fresh basil and roasted garlic


Insurance -- Commercial -- Breach of contract -- Bad faith -- Appeal of non-final order denying insurer's motion to dismiss breach of contract and bad faith claim, leaving claims to be tried simultaneously -- Trial court's order is reversed because insurer should not be required to defend against bad faith claim until insured has prevailed on merits -- Trial court can decide either to dismiss bad faith claim without prejudice or abate the claim until underlying breach of contract issue is resolved
LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. STUDIO IMPORTS, LTD., INC., Appellee. 4th District.

Insurance -- Commercial general liability -- Duty to defend -- Error to enter summary judgment based on finding that insurer had no duty to defend insured in personal injury action that fell within automobile exclusion of commercial general liability policy where complaint alleged facts that fairly brought suit outside automobile exclusion
CATEGORY 5 MANAGEMENT GROUP, LLC, Appellant, v. COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 1st District.

Medical -- Appeals -- Harmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment -- Question certified -- To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict -- Court recedes from line of cases which applied a strict, outcome-determinative “but-for” test for harmless error -- Wrongful death -- Action alleging anesthesiologist and hospital were negligent in administering anesthesia, in monitoring decedent's system during cesarean delivery and controlling her fluids during surgery, and in responding to decedent's cardiopulmonary arrests -- Cross-examination -- Limitation -- Trial court abused its discretion in precluding plaintiff from cross-examining defense expert, who maintained that death resulted from amniotic fluid embolus and testified regarding range of probability of AFE occurring, regarding credibility of another witness, whose testimony seemingly indicated a disproportionately high diagnosis of AFE cases at defendant hospital -- Error was harmless where it is more likely than not that the restriction on the cross-examination did not contribute to the verdict
FRANK SPECIAL, as Personal Representative of the Estate of Susan Special, Appellant, v. IVO BAUX, M.D., IVO BAUX, M.D., P.A. PINNACLE ANESTHESIA, P.L.; and WEST BOCA MEDICAL CENTER, INC., Appellees. 4th District.

Torts -- Trusts -- Breach of fiduciary duty -- Amended final judgment awarding plaintiff an equitable lien on certain real property on plaintiff's breach of fiduciary duty claim against defendant individually and as trustee of revocable living trust was apparently based on erroneous impression that trial court could not transfer title of property to plaintiff -- Remand for reconsideration of appropriate remedy
REBEKAH PARIZ, Appellant/Cross-Appellee, vs. HELEN M. COLON, INDIVIDUALLY, AND AS TRUSTEE OF THE HELEN M. COLON REVOCABLE LIVING TRUST AND HELEN M. COLON REVOCABLE LIVING TRUST, Appellee/Cross-Appellant. 3rd District.

Torts -- Product liability -- Tobacco -- Individual action by Engle class member -- Appeals -- Certiorari -- Petition for certiorari review of orders denying plaintiff's motion to amend a complaint filed by her and her deceased husband in order to state an action for wrongful death and plaintiff's motion to substitute herself, as personal representative of husband's estate, as the plaintiff -- Denial of motion to amend is not reviewable by certiorari where order of dismissal could be entered and plaintiff could then seek review by plenary appeal -- Petition dismissed for lack of jurisdiction -- Concern expressed over basis for circuit court's ruling, which relied upon district court opinion holding that when a personal injury plaintiff's death is the result of the personal injuries, an amendment to the personal injury complaint should not be permitted and a new, separate lawsuit for wrongful death must be filed, as new lawsuits could be barred as untimely under Engle even though original personal injury lawsuits were timely filed
CHARLEEN SKYRME, Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS USA, INC.; LORILLARD TOBACCO COMPANY; LORILLARD, INC.; LIGGETT GROUP, LLC (f/k/a Liggett Group, Inc., Liggett & Myers Tobacco Company); and VECTOR GROUP, LTD., INC. (f/k/a Brooke Group, Ltd.), Respondents. 2nd District.

Torts -- Civil procedure -- Relief from judgment -- Procedural due process -- No abuse of discretion in denying plaintiffs' motion for relief from summary judgment entered in favor of retailer in action alleging malicious prosecution and other claims arising out of arrest and prosecution of plaintiff for retail theft -- Plaintiffs were afforded both proper notice and a meaningful opportunity to be heard where it was undisputed that they were served with notice of summary judgment hearing approximately three months before hearing took place and raised no objections to either the scheduled date or duration of hearing in interim between receipt of notice and hearing; hearing was conducted in fair manner appropriate to nature of proceeding; and summary judgment was granted only after plaintiffs conceded the issue of probable cause
OSANNA S. CARMONA and NELSON L. CARMONA, Appellants, v. WAL-MART STORES, EAST, LP, Appellee. 2nd District.

Torts -- Automobile accident -- Rear-end collision -- Evidence -- Damages -- Claim that trial court, in granting plaintiff's motion in limine, improperly precluded defendants from presenting testimony that the amount of damages plaintiff was claiming was not reasonable or necessary for the injuries at issue was not preserved for appeal where no transcript of hearing on motion in limine was in the record and neither record nor brief revealed what specific testimony was excluded as a result of the motion in limine -- Trial court did not err in denying motion for directed verdict as to charges that plaintiff's physician violated section 456.052 by self-referring plaintiff for MRIs to a facility that the physician himself owned without making required disclosure, as it was unclear whether statute was, in fact, violated -- Argument -- Trial court did not abuse its discretion in denying defendant's motion for new trial based on cumulative effect of allegedly improper remarks made by plaintiff's counsel during closing argument where defendants failed to show that remarks were incurable, remarks were not as pervasive as defendants suggest, many of the remarks were fair reply to arguments made by defendants, and public's interest in system of justice was not impaired
AARMADA PROTECTION SYSTEMS 2000, INC. and JEFFREY STEVEN DUBLE, JR., Appellants, v. LANCE YANDELL and MAUREEN YANDELL, Appellees. 4th District.

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