Product liability, class actions, equitable distribution, and lemon-garlic chicken sauteed in truffle oil with cumin seeds

Class actions -- Torts -- Negligence -- Certification of class -- Denial -- Trial court did not err in denying amended motion for class certification in action against road construction contractor brought by business owners who allegedly sustained lost profits in their respective businesses when contractor's employee allegedly damaged natural gas line, resulting in interruption of gas service to sizable region -- To establish numerosity and typicality for purposes of class action, plaintiffs needed to show that sufficient and clearly ascertainable number of proposed class members had suffered some compensable damage from alleged negligence -- Trial court did not err in determining that proposed class was overbroad and failed in this regard

LUCARELLI PIZZA & DELI and T.A.S. SUNSHINE ENTERPRISES LLC, Appellants, v. POSEN CONSTRUCTION, INC., Appellee. 2nd District.

Contracts -- Employment -- Non-compete and non-solicitation agreements -- Injunction -- Trial court properly entered temporary injunction to enforce non-compete and non-solicitation provisions of employment agreement with provider of home health care services -- Referral sources for home health care services are a legitimate business interest entitled to protection under section 542.335, Florida Statutes (2012) -- Conflict certified

INFINITY HOME CARE, L.L.C., and SYLVIE FORJET, Appellants, v. AMEDISYS HOLDING, LLC, Appellee. 4th District.

Dissolution of marriage -- Child custody -- Timesharing -- Modification -- Concerns related to distance between former wife's residence and child's school not basis for modification where location of parties' respective residences was known at time of final judgment when trial court selected former husband's residence as child's legal address and address to be used for school designation purposes -- Because substantial competent evidence of substantial change in circumstances was not presented, trial court abused its discretion by granting former wife's modification petition

JEROD B. BLEVINS, Appellant, v. JENNIFER BLEVINS, Appellee. 5th District.

Dissolution of marriage -- Equitable distribution -- Non-marital assets -- Real property -- Trial court erred in awarding wife any interest in marital home which husband had acquired prior to the marriage -- Evidence contradicted trial court's finding that wife had invested $40,000 in the home, and although mortgage payments had been made with pooled resources, the value of the home had decreased during the marriage -- Trial court erred in unequally distributing Georgia properties without making requisite findings or explanations -- Remand for further proceedings to equitably distribute marital assets

WILLIAM E. WEAVER, Appellant, v. LORI LYNN WEAVER, Appellee. 4th District.

Insurance -- Homeowners -- Declaratory judgment -- Duty to defend and indemnify -- Exclusions -- Damages arising out of sexual molestation, corporal punishment or physical or mental abuse -- Intentional shooting -- Plain meaning of words “physical abuse” includes an instance such as one at issue in which insured lent gun to his sister who then used gun to shoot plaintiff, her son-in-law, outside of her home -- Trial court properly entered summary judgment in favor of insurer based on determination that insurer had no duty to indemnify or defend its insured in a separate personal injury action arising from the shooting

SALVATORE MIGLINO, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY and HARVEY IRA STEIN, Appellees. 4th District.

Insurance -- Personal injury protection -- Medical expenses -- Coverage -- Statutory fee schedules -- Clear and unambiguous election by insurer -- Policy language providing that any amounts payable “shall be subject to any and all limitations authorized by section 627.736 . . . or any other provisions of the Florida Motor Vehicle No-Fault Law, including, but not limited to, all fee schedules” did not make it clear whether insurer was actually and in fact electing to limit its reimbursements to providers under Medicare fee schedules or was simply announcing that it was reserving its right to elect to do so -- Language is ambiguous and must be construed in favor of providers -- Conflict certified

ORTHOPEDIC SPECIALISTS, as Assignee of KELLI SERRIDGE, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. 4th District.

Paternity -- Timesharing -- Default -- Trial court erred in entering default judgment in favor of father on his counter-petition requesting to establish paternity and timesharing where record did not reflect that mother received service of counter-petition, motion for default, order granting default, or notice of final hearing

GRANADA FELIPE, Appellant, v. RANDOLHF RINCON, Appellee. 5th District.

Torts -- Fraud -- Civil theft -- Limitation of actions -- Reconsideration by successor judge of order of recused judge dismissing complaint on basis of statute of limitations and statute of repose -- Successor judge properly denied motion for reconsideration of predecessor judge's order dismissing complaint where plaintiff failed to indicate how grounds alleged for recusal impacted the recused judge's rulings and failed to demonstrate any prejudice he suffered from initial judge's entry of order of dismissal

STEVE OGNENOVIC, Appellant, v. DAVID J. GIANNONE, INC., DAVID J. GIANNONE, and RICHARD ANDERSON, Appellees. 4th District.

Torts -- Nursing homes -- Violation of resident's rights -- Arbitration -- Trial court erred in denying defendant nursing home's motion to compel arbitration pursuant to arbitration agreement signed by resident's sister as attorney-in-fact for resident under durable power of attorney on basis that power of attorney limited sister to act as attorney-in-fact for resident to claims involving only liquidated damages -- Language of power of attorney, which granted sister ability to sue for “liquidated or liquidated” damages on behalf of resident, was ambiguous -- Remand for trial court to conduct further proceedings to determine intent of sisters in creating power of attorney

SANTA ROSA INVESTORS, INC. d/b/a SANTA ROSA HEALTH AND REHABILITATION CENTER; SUMMIT CARE II, INC.; GUY FARMER, and JOE D. MITCHELL, Appellants, v. BETTY WILSON AND VIOLET JOYCE CARTER, AS POWER OF ATTORNEY FOR BETTY WILSON, Appellees. 1st District.

Wrongful death -- Medical malpractice -- Trial court did not err in entering summary judgment for defendant University of Miami on claim that University was vicariously liable for negligence of physicians where there had been no pleading that University was vicariously liable for negligence of those physicians -- On motion for summary judgment, trial court considers only issues raised in pleadings

LISA WILSON and KEISHA SALMON, etc., Appellants, vs. RICHARD STONE, M.D., et al., Appellees. 3rd District.

Wrongful death -- Product liability -- Tobacco

DIANA PAPPAS, as Personal Representative of the Estate of MINA PAPPAS, Deceased, Appellant/Cross-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY a foreign corporation, LIGGETT GROUP, LLC, a foreign corporation, f/k/a LIGGETT GROUP, INC., f/k/a LIGGETT & MYERS TOBACCO COMPANY and VECTOR GROUP LTD, INC., f/k/a BROOKE GROUP, LTD, a foreign corporation, Appellees/Cross-Appellants. 4th District


The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH, MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL, HEALTH & INSURANCE, 11th CIRCUIT, or all FEDERAL Recent Decisions of Interest.