Tuesday, February 14, 2012

Appeals, punitive damages caps, criminal law and pumpkin-sage, handmade ravioli

Happy Valentine's Day to all!

Insurance -- Automobile -- Coverage -- Automobile accident occurring during interim between lapse of coverage under expired policy and reinstatement of policy -- Trial court erred in ruling that insurer's unconditional acceptance of premium waived its right to claim that there had been a lapse in coverage -- Where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, the insurer may subsequently accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss -- Estoppel -- Genuine issue of material fact remains as to whether a potentially misleading bill that insurer sent to named insured, which incorrectly listed the renewal policy period, supports affirmative defense of estoppel -- Civil procedure -- Summary judgment -- Trial court erred in rejecting, as self-serving, affidavit of insurer's underwriting specialist which simply asserted that insurer mailed renewal bills and reminders, insured failed to timely pay renewal premium, and when insured made premium payment following accident, insurer reinstated policy commencing the next day
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. MICHEL CAMILLO and JEAN-PAUL CAMILLO, Appellees. 4th District.


Insurance- Torts -- Automobile accident -- Rear-end collision -- New trial -- Error to grant summary judgment in favor of plaintiffs where sufficient evidence fairly and reasonably tended to show that their vehicle was illegally stopped in the roadway at a time when it was both dark and raining, and there was conflicting testimony regarding whether emergency flashers on plaintiffs' vehicle were illuminated -- Threshold defense -- Non-resident -- Error to grant summary judgment finding that Florida's permanent injury threshold defense was unavailable to defendant where defendant was subject to Florida's no-fault law and maintained no-fault insurance coverage through her Illinois policy, which incorporated the laws of Florida by reference
ANA JIMINEZ, Appellant/Cross-Appellee, v. GEORGE FACCONE, Individually; and GEORGE FACCONE, as Personal Representative of the Estate of Rita Faccone, Deceased, Appellees/Cross-Appellants. 2nd District.

Expert Witness: ARKANSAS HIGH COURT FINDS EXPERT-WITNESS REQUIREMENT UNCONSTITUTIONAL, Broussard v. St. Edward Mercy Health System, 7 No. 18 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice February 3, 2012 The Arkansas Supreme Court has deemed unconstitutional a state law requiring expert witnesses in malpractice cases to practice in the same medical specialty as the defendant. The requirement in found in Ark. Code Ann. 16-114-206(a) violates the separation-of-powers doctrine in the state constitution because it interferes with the courts' power to set and control procedure, the high court said.The ruling stemmed from Teresa L. Broussard's malpractice lawsuit against St. Edward Mercy Medical Center.  

Failure to Diagnose: JUDGE ALLOWS VETERAN'S DELAYED-DIAGNOSIS CLAIMS TO PROCEED, Normand v. United States, 7 No. 18 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice February 3, 2012 A U.S. veteran who alleges that VA hospital workers delayed his prostate cancer diagnosis and caused him to undergo radiation therapy that left him impotent may continue to pursue limited negligence claims against the government, a federal judge has ruled. Chief U.S. District Judge Glen E. Conrad of the Western District of Virginia said the government is entitled to summary judgment on claims involving a nurse practitioner


Hospital Negligence: STAFFING COMPANY LOSES BID TO REVERSE $3.5 MILLION VERDICT, Medical Staffing Network v. Connors, 7 No. 18 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice February 3, 2012 A staffing agency that claimed a Georgia hospital had entered into a secret agreement with a malpractice plaintiff to increase the agency's liability has lost its appellate court bid to reverse a $3.5 million verdict. DeKalb Medical Center's litigation agreement with a deceased patient's family did not render the verdict against Medical Staffing Network Inc. fundamentally unfair, the Georgia Court of Appeals said.

Interesting Legislation: PENNSYLVANIA HOUSE OKS PUNITIVE DAMAGES CAP FOR NURSING HOMES, 7 No. 18 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice February 3, 2012 The Pennsylvania House of Representatives has approved legislation that limits punitive damages awards against nursing homes to 200 percent of a plaintiff's compensatory damages. House Bill 1907 does not take away a plaintiff's right to full compensation, but eliminates courts' ability to hand out "jackpot-type" awards, Republican state Rep. Glen Grell, the bill's sponsor, said in a Jan. 19 statement. The House voted 103-89 to pass the measure Jan. 18 after considering it for the third time. 

Criminal law -- Aliens -- Reentry into United States after removal or deportation -- Government is collaterally estopped from litigating alienage where jury's verdict of acquittal in prior federal criminal trial for illegal reentry was necessarily based on jury's reasonable doubt about defendant's alienage and fact of alienage status is an essential element of current prosecution for illegal reentry -- Because government is collaterally estopped from arguing that defendant is an alien, it cannot prove an essential element for charged offense of illegal reentry and indictment must be dismissed
UNITED STATES OF AMERICA, Petitioner-Appellee, v. EMILIANO VALDIVIEZ-GARZA, a.k.a. Ismael Valdiviez, Defendant-Appellant. 11th Circuit.


Criminal law -- Costs -- It was error to assess costs in written order of sentence which were not orally announced -- Error to assess public defender fee without giving defendant opportunity to contest fee
ANTRAVEIUS T. BAKER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.



Criminal law -- Dismissal -- Absence of motion -- Trial court abused its discretion by sua sponte dismissing charges against defendant -- Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or dismiss charges is a determination to be made solely by the state
STATE OF FLORIDA, Appellant, vs. PAUL BROSKY, Appellee. 3rd District.


Criminal law -- Dismissal -- Absence of motion -- Trial court abused its discretion by sua sponte dismissing charges against defendant -- Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or dismiss charges is a determination to be made solely by the state
STATE OF FLORIDA, Appellant, vs. PAUL BROSKY, Appellee. 3rd District.


Criminal law -- Double jeopardy -- Felony merger doctrine -- Separate convictions for attempted felony murder and attempted premeditated murder arising from same criminal episode did not amount to double jeopardy violation under standard analysis -- However, dual convictions based on attempted killing of one victim are precluded by felony merger doctrine -- Attempted felony murder conviction reversed
JOSEPH BERNARD WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.


Criminal law -- Evidence -- Hearsay -- Tape recording -- Trial court did not err in allowing surreptitiously recorded conversation between defendant and co-defendant in the back of a patrol car to be played at trial where defendant's side of conversation was admissible as a party admission and co-defendant's side of conversation was admissible to place defendant's statements into context -- Further, conversation between the two was not instigated by law enforcement or any other person with primary purpose of collecting evidence for criminal prosecution
TRAHN BOWENS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.


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