Monday, July 25, 2011

Health and insurance law updates and garlic-lemon chicken with arugula tossed with walnuts, balsamic vinagrette and goat cheese

Insurance -- Discovery -- Claim file -- Privilege -- Trial court erred in ordering production of documents from insurer's claim file in first-party dispute over medical bills without considering attorney-client privilege objection -- Trial court further erred in ruling that claim file notes and other internal documents were not protected by work product privilege, in failing to consider objections to relevancy of documents sought and in overruling preserved objections to production without affording parties adequate notice and opportunity to be heard -- Order compelling production of materials for which attorney-client and work product privileges are invoked presents potential for irreparable harm warranting certiorari relief

Insurance -- Coverage -- Amount of loss -- Appraisals -- Insured is not entitled to appraisal, where coverage for hurricane claim has been denied in its entirety because insurer has unequivocally stated that no coverage is available under policy and that policy is void -- Because issue of whether claim is covered by policy is a question for judicial determination, when the claim has been denied in its entirety based on lack of coverage, appraisal is not appropriate
Reported at 23 Fla. L. Weekly Fed. D9a

Insurance -- Hurricane damage to condominium -- Bad faith -- Certiorari -- Insurer's petition for writ of certiorari, seeking quashal of circuit court orders that allowed insured to amend complaint to add bad faith and punitive damages claims after appraisal award had been confirmed but before entry of final judgment on policy-phase issues -- Petition for writ of certiorari denied where insurer did not establish irreparable, material harm, a threshold requirement for issuance of writ of certiorari -- Order permitting amendment to add an allegedly premature bad faith claim does not satisfy irreparable harm requirement for certiorari -- Court recedes from decisions which have granted a petition for writ of certiorari when irreparable harm seems possible rather than imminent and which have broadly held that certiorari is available to challenge a premature bad faith claim or premature bad faith discovery
Reported at 36 Fla. L. Weekly D1558a

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where circuit court appellate division reversed summary judgment which county court had entered in favor of insured's assignee in action against insurer, but affirmed county court order requiring insurer to pay expert witness fee for assignee's expert, circuit court departed from essential requirements of law in denying award of attorney's fees to assignee for prevailing on expert witness fee issue
Reported at 36 Fla. L. Weekly D1553b

Public Employee: FLORIDA PUBLIC EMPLOYEES SUE STATE OVER CHANGES IN RETIREMENT BENEFITS, Williams v. Scott, 21 No. 40 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage July 15, 2011
A group of 11 public employees has sued the state of Florida, claiming that the government cannot legally make changes to its retirement system with respect to salary deductions and cost-of-living adjustments. The plaintiffs claim that the plan in Senate Bill 2100, which was signed by Republican Gov. Rick Scott June 22 and took effect July 1, violates the Florida Constitution. They say the plan interferes with the deal they and others had with the state and impairs their right to collectively bargain.

Auto: BUS OPERATOR, DRIVER NOT COVERED FOR PASSENGERS' TB INFECTIONS, Lancer Ins. Co. v. Garcia Holiday Tours, 21 No. 40 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage July 15, 2011
An auto insurer is not required to cover a $5 million verdict against a tour bus operator and a driver for transmitting tuberculosis to passengers, the Texas Supreme Court has ruled in an issue of first impression. The passengers' exposure to the disease resulted from causes other than the use of the bus, the high court said, reversing a state appeals court decision against Lancer Insurance Co.According to the opinion, a driver for tour bus operator Garcia Holiday Tours was infected with tuberculosis.

Right to Jury Trial: INSUREDS ENTITLED TO JURY TRIAL ON BAD-FAITH CLAIMS, N.J. HIGH COURT SAYS, Wood v. N.J. Mfrs. Ins. Co., 21 No. 40 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage July 15, 2011
In a case of first impression, New Jersey's highest court has determined that policyholders' bad-faith claims against their insurance company for failure to settle within policy limits are traditional contract claims that give insureds the right to a trial by jury. "Fundamentally, and regardless of how it is couched or what label is affixed to it, a Rova Farms bad-faith claim is and always has been a breach-of- contract claim.”

Health Benefits: FEDS ABANDON SAME-SEX MARRIAGE BAN BUT FIGHT SPOUSAL HEALTH BENEFITS, Golinski v. Office of Pers. Mgmt., 21 No. 40 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage July 15, 2011
The Justice Department has reversed course in a federal employee's lawsuit accusing the United States of unlawfully refusing to offer same-sex couples equal health care options, now saying the law banning recognition of same-sex marriage is unconstitutional. The government's about-face came in response to employee Karen Golinski's summary judgment motion filed in the U.S. District Court for the Northern District of California.

Discrimination: MORTGAGE INSURER BIASED AGAINST WOMEN ON MATERNITY LEAVE, U.S. SAYS, United States v. Mortgage Guaranty Ins. Corp., 21 No. 40 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage July 15, 2011
The Justice Department alleges in a Pennsylvania federal court lawsuit that Mortgage Guaranty Insurance Corp. discriminates against women who are on maternity leave by refusing to insure their mortgages. The government says MGIC's allegedly biased practices violate the Fair Housing Act, 42 U.S.C. 3601, which prohibits discrimination in housing and mortgage lending based on race, color, religion, national origin, gender, disability and familial status.

Employee Theft: NO COVERAGE FOR CUSTOMER LISTS STOLEN BEFORE POLICY ISSUED, JUDGE RULES, Response Pers. v. Hartford Fire Ins. Co., 21 No. 40 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage July 15, 2011
An insurance policy's discovery provision barred coverage for the alleged theft of customer lists by a staffing agency's former employees because the agency knew about its losses two years before the policy was even issued, a New York federal judge has ruled. U.S. District Judge Denise Cote of the Southern District of New York found that when Response Personnel Inc. sued the employees in 2004 over the allegedly stolen customer lists, the staffing firm acknowledged its losses.

Life Insurance: METLIFE RENEGED ON LIFETIME BENEFITS GUARANTEE, GM RETIREES SAY, Haviland v. MetLife, 21 No. 40 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage July 15, 2011
Forty-five retired General Motors workers have filed a class-action lawsuit in Michigan state court, accusing Metropolitan Life Insurance Co. of unlawfully reducing their guaranteed life insurance benefits. The retirees sued MetLife in the Wayne County Circuit Court over a promise that they would receive full life insurance benefits for the rest of their lives. The complaint states claims for conversion, unjust enrichment, breach of contract, fraud, intentional infliction of emotional distress.

Life Insurance: NEW YORK SUBPOENAS 9 LIFE INSURANCE COMPANIES, SOURCE SAYS, 21 No. 40 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage July 15, 2011
NEW YORK, July 5 (Reuters) - New York's top legal officer has sent subpoenas to nine leading life insurers, seeking information about their practices in identifying and paying out policies for deceased customers, according to a person familiar with the matter. New York Attorney General Eric Schneiderman sent subpoenas in June to units of AXA SA, Genworth Financial Inc., Guardian Life Insurance Co. of America, Manulife Financial Corp., Massachusetts Mutual Life Insurance Co., MetLife Inc., etc.

Title Insurance: CALIFORNIA FEDERAL JUDGE ORDERS ARBITRATION IN TITLE INSURANCE DISPUTE, In re Cal. Title Ins. Antitrust Litig., 21 No. 40 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage July 15, 2011
A class-action dispute over whether the nation's largest title insurers and their affiliates monopolized California's title insurance market should be arbitrated in light of a recent U.S. Supreme Court decision, a federal judge in San Francisco has ruled. U.S. District Judge Jeffrey S. White of the Northern District of California agreed with five title insurance companies and their affiliates that the Supreme Court's ruling in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), allowed it.

Mold Damage: COVERAGE DENIAL FOR MOLD DAMAGE NOT BAD FAITH, Rooters v. State Farm, 21 No. 40 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage July 15, 2011
An insurance carrier did not act in bad faith when it refused to pay an insured for mold damage caused by a hailstorm where the policy contained a mold exclusion, the 5th U.S. Circuit Court of Appeals has ruled. The three-judge panel rejected the insured's argument that the carrier should pay to clean up the mold infestation because the condition was caused by water intrusion, a covered peril.Siding with the insurer, the court relied on Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006).

Chinese Drywall: CHINESE DRYWALL-RELATED LOSS NOT AN 'ACCIDENT' FOR COVERAGE PURPOSES, Lopez v. Shelter Ins., 21 No. 40 Westlaw Journal Insurance Coverage 12, Westlaw Journal Insurance Coverage July 15, 2011
An insurance carrier did not act in bad-faith by denying coverage for personal injuries and damage caused by Chinese drywall as the loss was not caused by an "accident," a Mississippi federal judge has ruled. U.S. District Judge Tom S. Lee of the Southern District of Mississippi also ruled that the drywall-related loss was subject to policy exclusions for "contamination" and "faulty materials."In December 2007 Ron and Christie Lopez bought a newly constructed home in Waynesboro, Miss.

Kickbacks: 3RD CIRCUIT REVIVES KICKBACK CLAIM AGAINST HEALTH INSURER, United States v. United Health Group, 21 No. 40 Westlaw Journal Insurance Coverage 13, Westlaw Journal Insurance Coverage July 15, 2011
The 3rd U.S. Circuit Court of Appeals has reinstated a claim accusing insurer United Health Group and a subsidiary of violating the False Claims Act by offering illegal kickbacks to a medical clinic and doctors. Two whistle-blowing former employees properly pleaded the claim under an "implied false certification" theory by asserting that the insurers received Medicare reimbursements despite their "knowing violation" of the Anti-Kickback Statute, the panel said.

Torts -- Medical malpractice -- Attorney's fees -- Trial court erred in awarding attorney's fees and costs pursuant to section 57.105(1) following a mistrial after plaintiff's counsel presented the idea of “doctoring of records” for the first time during voir dire -- Section 57.105(1) is conditioned on section 57.105(4), which states that the motion for attorney's fees may not be filed with the court unless, within twenty-one days of service, the challenged allegation is not withdrawn or appropriately corrected -- Because plaintiff's counsel alleged the “doctoring of records” during jury selection, there was no way to withdraw or appropriately correct that allegation within 21 days after service of the motion, and thus section 57.105(1) was inapplicable -- Even if section 57.105(1) applied, it was impossible for plaintiff to allege such fraud and spoilation in the complaint where the fraud alleged was not fraud on the plaintiff but fraud on the court based on documents obtained during discovery -- Additionally, no independent cause of action exists for first-party spoilation of evidence -- Costs -- An award of costs is not allowed under section 57.105(1), which expressly provides for attorney's fees but makes no mention of costs -- Where nothing in the record suggests that plaintiff's counsel acted in bad faith, trial court could not impose fees pursuant to its inherent authority -- Trial court did not err in granting motion in limine to preclude plaintiff from referencing alleged alteration and concealment of records during second trial where reasonable persons could differ as to whether plaintiff possessed sufficient proof to attack defendant's credibility based on discrepancies in testimony between defendant and other witnesses -- Likewise, trial court's curative instruction to the jury that there was no evidence adduced at trial that records were added following plaintiff's counsel's statements alleging defendant altered records was an appropriate response given that the plaintiff's counsel's statements violated the court's order granting the motion in limine
Reported at 36 Fla. L. Weekly D1562a

Feres Doctrine: SUPREME COURT WON'T HEAR CHALLENGE TO FERES DOCTRINE, Witt v. United States, 7 No. 3 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice July 15, 2011
The U.S. Supreme Court has declined to consider whether a federal law that protects the government from liability for injuries stemming from military service applies to a case involving an Air Force official who died during a botched intubation at a military hospital. U.S. Air Force Staff Sgt. Dean Patrick Witt was hospitalized Oct. 10, 2003, for a "routine" appendectomy at Travis Air Force Base in Fairfield, Calif., court filings say.

Wrongful Death: MICHAEL JACKSON'S DOCTOR SAYS POP STAR GAVE HIMSELF LETHAL DOSE, Jackson v. Murray, 7 No. 3 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice July 15, 2011
The physician implicated in the death of Michael Jackson has alleged in response to a wrongful-death lawsuit filed by Jackson's father that the pop star self-administered the drugs that killed him. Dr. Conrad Murray raises the affirmative defense of assumption of risk in an answer filed in the Los Angeles County Superior Court. He says Jackson "clandestinely self-administered or self-ingested" propofol or other medications the day he died and is therefore responsible for his own death.

Abuse & Neglect: FACILITY'S NEGLECT LANDED MENTALLY ILL MAN IN HOSPICE, SUIT SAYS, McMurtrey v. Northway Health & Rehab., 7 No. 3 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice July 15, 2011
An Alabama nursing facility abused a paranoid schizophrenic resident by allowing him to develop severe pressure sores that resulted in surgery and hospice care, a state court lawsuit alleges. James Ratchford will likely die from the infected sores he developed because of negligent care at Northway Health & Rehabilitation, his cousin Amy McMurtrey claims in a complaint filed in the Jefferson County Circuit Court. According to the lawsuit, Ratchford entered the facility in October 2010 for treatment.

Defective Syringe: PENNSYLVANIA FEDERAL JUDGE DISMISSES SYRINGE DEFECT SUIT, Pusey v. Becton Dickinson & Co., 7 No. 3 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice July 15, 2011
A federal judge in Philadelphia has dismissed a woman's negligence and strict liability suit against Becton Dickinson & Co., finding she cannot prove that a syringe used during a medical procedure caused a bacterial infection in her chest. In dismissing the case, U.S. District Judge Stewart Dalzell said plaintiff Judith Pusey failed to exclude other possible sources of the infection.Pusey said a Becton Dickinson 60-milliliter Luer-Lok syringe caused her infection.  

Expert Testimony: MISSISSIPPI FEDERAL JUDGE TOSSES SUIT OVER DIALYSIS MACHINE INJURY, Cothren v. Baxter Healthcare Corp., 7 No. 3 Westlaw Journal Medical Malpractice 5, Westlaw Journal Medical Malpractice July 15, 2011
Baxter Healthcare Corp. has won summary judgment in a Mississippi product defect lawsuit as a federal judge ruled that a user of its kidney dialysis machine failed to meet a state law requirement to present expert testimony. Amanda Cothren sued the Illinois-based medical equipment maker in 2010 in Mississippi state court, claiming she was injured when her Home Choice Pro automated peritoneal dialysis cycler caused internal injuries because it failed to turn off after each operation cycle.

Independent Medical Examination: MISSOURI HIGH COURT: INDEPENDENT MEDICAL EXAM TRIGGERED NEED FOR AFFIDAVIT OF MERIT, Devitre v. Orthopedic Ctr. of St. Louis, 7 No. 3 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice July 15, 2011
A Missouri man's lawsuit against an orthopedist he said injured him during an independent medical examination was properly dismissed for failure to file an affidavit of merit from a legally qualified health care provider, the state's highest court has ruled. The 6-1 court ruled that the IME was a "health care service that created a limited physician-patient relationship" between the man and the doctor and therefore triggered the state law requiring the filing of an affidavit of merit.

Insurance Coverage Dispute: 5TH CIRCUIT REJECTS COVERAGE FOR OMISSIONS IN RECOMMENDATION LETTER, Preau v. St. Paul Fire & Marine Ins. Co., 7 No. 3 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice July 15, 2011
The 5th U.S. Circuit Court of Appeals has rejected coverage for an $8.2 million verdict against a company owner who omitted in a letter of recommendation that an anesthesiologist employee was fired for abusing Valium and ignoring a page. The unanimous panel said the verdict was attributed to the owner's negligent misrepresentation, not to the anesthesiologist's subsequent improper treatment of a patient at his new employer. The patient's bodily injury would have been covered by the policy.

Physician Error: GOVERNMENT SETTLES LAWSUIT OVER RUPTURED EYEBALL FOR $925K, Goncalves v. United States, 7 No. 3 Westlaw Journal Medical Malpractice 8, Westlaw Journal Medical Malpractice July 15, 2011
The U.S. government will pay nearly $1 million to settle a lawsuit filed by a Connecticut Army veteran who was blinded in one eye after a doctor injected a local anesthetic into his eyeball instead of behind it. The injury to Jose Goncalves' right eye occurred Nov. 1, 2007, at the West Haven Veterans Affairs Hospital during what should have been routine surgery to remove a cataract, according to the complaint filed in the U.S. District Court for the District of Connecticut.

Surgical Error: ILLINOIS MAN BLAMES SURGEON AND FAILURE OF NERVE MONITOR FOR FACIAL PARALYSIS, Wellmaker v. Touchette Reg'l Hosp., 7 No. 3 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice July 15, 2011
An Illinois surgeon, hospital and Medtronic Inc. are among those being sued by a man who says he suffers from partial facial paralysis because the surgeon severed a facial nerve after a Medtronic nerve monitoring system failed during removal of a tumor. Ralph Wellmaker seeks more than $300,000 in damages for the injuries he says he sustained when the NIM nerve monitoring system malfunctioned during his facial operation at Touchette Regional Hospital in Centerville, Ill.

Wrong-Side Surgery: WRONG-SIDE SURGERY SPURS ALABAMA LAWSUIT, Miller v. Univ. of Ala. Health Servs. Found., 7 No. 3 Westlaw Journal Medical Malpractice 10, Westlaw Journal Medical Malpractice July 15, 2011
An Alabama woman says she awoke from surgery to remove a tumor in the area below her right shoulder only to find that the surgeons had operated on her left side instead. Virginia Miller alleges Drs. Martin J. Heslin and Aaron Hoffman negligently operated on the wrong side even though she had had several X-rays and a CT scan that showed the tissue mass was in her right subscapular region. Miller says the radiological examinations were reported to and reviewed by both physicians.

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Friday, July 15, 2011

Attorneys' fees, FDUTPA and lamb roasted on rosemary and plum tomatoes

Attachment and garnishment -- Cook v. NC Two, L.P.,(Ga.)
Attachment and Garnishment - Substantial compliance did not excuse noncompliance with notice requirement in garnishment action.
Substantial compliance did not excuse noncompliance with the statutory three-business-day requirement for providing notice to judgment debtor in garnishment action.

Civil rights -- Racial discrimination -- Reverse discrimination -- White male brought reverse discrimination claim against former employer alleging he was terminated on account of his race -- Plaintiff presented sufficient evidence to withstand motion for summary judgment where record contains sufficient circumstantial evidence from which a jury could infer that employer displayed racially discriminatory animus toward plaintiff when it terminated his employment after plaintiff transmitted racially insensitive “joke” email in violation of zero tolerance policy -- Circumstantial evidence yields inference that employer only fired plaintiff because he is white because record evidence permits a jury to infer reasonably that employer's justification for firing plaintiff is pretext for racial animus, shows that employer had substantial incentive to discipline white employees who distributed racist emails more harshly than black employers who were guilty of same or similar conduct during subject period, and indicates clearly that employer consciously injected race considerations into its discipline decision making without an adequate explanation for doing so -- Employer's injection of race into its decision-making process yields an unavoidable inference that employee's race impacted discipline determination, and it is a jury's province to decide whether race actually bore on decision to terminate plaintiff
Reported at 23 Fla. L. Weekly Fed. C64a

Civil procedure -- Dismissal -- Failure to prosecute -- Trial court erred in applying rule 1.420(e) to a non-mortgage foreclosure civil case in which a final judgment had been entered -- Exceptions created by Florida Supreme Court for mortgage foreclosure cases does not apply to instant case
Reported at 36 Fla. L. Weekly D1505d

Civil rights -- Search and seizure -- Detention -- Occupant of premises to be searched -- Plaintiff, who was seized by law enforcement and detained for up to two hours while officers searched residence of her son failed to establish a Fourth Amendment violation, even if alleged facts were proven to be true at trial -- Initial seizure and detention in front yard of house known by law enforcement to be involved in distribution of controlled substances at time it was searched was constitutional where defendants possessed anticipatory search warrant to search the premises and reasonably prudent man in defendants' positions would have been warranted in belief that he was validly authorized to execute warrant and search the premises -- Implicit in that authority is categorical right to temporarily detain occupants of premises to be searched -- Scope and duration of search were constitutional -- Continued detention for up to two hours during length of search was permissible, although defendants had ceased harboring suspicions that plaintiff was involved in criminal activity -- Force, consisting of officer pushing plaintiff to ground from her squatting position and holding her there with a foot or knee in the back for up to ten minutes while premises were secured, was de minimus, and plaintiff's Fourth Amendment right to be free from excessive force at hands of law enforcement was not violated -- For safety of persons involved, officers were authorized to exercise unquestioned command of situation by placing all occupants of premises on the ground for several minutes while securing home and ensuring there was no danger to officers or public
Reported at 23 Fla. L. Weekly Fed. C73a

Consumer law -- Deceptive and unfair trade practices -- Attorney's fees -- Offer of judgment -- Claim for attorney's fees under Florida Deceptive and Unfair Trade Practices Act and Florida's offer of judgment statute, arising from civil action seeking both damages and non-monetary relief -- Choice of law -- Florida's offer of judgment statute, Florida Rule of Civil Procedure 1.442(c)(2)(F), and FDUTPA and its fee-shifting provision are substantive for Erie purposes and, therefore, are applicable in this federal case -- Questions certified to Florida Supreme Court: Under Fla. Stat. § 768.79 and Rule 1.442, is a defendant's offer of judgment valid if, in a case in which the plaintiff demands attorney's fees, the offer purports to satisfy all claims but fails to specify whether attorney's fees are included and fails to specify whether attorney's fees are part of the legal claim? Does Fla. Stat. § 768.79 apply to cases that seek equitable relief in the alternative to money damages; and, even if it does not generally apply to such cases, is there any exception for circumstances in which the claim for equitable relief is seriously lacking in merit? Does Fla. Stat. § 501.2105 entitle a prevailing defendant to an attorney's fee award in a case in which a plaintiff brings an unfair trade practices claim under the FDUTPA, but the district court decides that the substantive law of a different state governs the unfair trade practices claim, and the defendant ultimately prevails on that claim? If Fla. Stat. § 501.2105 applies under the circumstances described in the previous question, does it apply only to the period of litigation up to the point that the district court held that the plaintiff could not pursue the FDUTPA claim because Florida law did not apply to his unfair trade practices claim, or does it apply to the entirety of the litigation?
Reported at 23 Fla. L. Weekly Fed. C59a

Contracts -- Real property sale -- Pre-construction condominium -- Description of property -- Recording data for declaration -- Trial court erred in entering summary judgment for buyer and revoking contract for the sale of a pre-construction condominium unit based on the conclusion that, because the sales contract failed to provide a legal description of the property as defined by section 718.109, the contract ran afoul of section 1703(d)(1) of the Interstate Land Sales Full Disclosure Act, which requires the description of the lot be “in a form acceptable for recording” -- Section 718.109, which defines the legal description for condominium parcels as including “recording data” for the declaration, does not apply until a declaration has been recorded -- Where declaration was not recorded, a failure to reference the declaration's “recording data” in the contract cannot be used as a basis for revoking the contract for violating ILSFDA -- The purpose of ILSFDA is preventing fraud through disclosure of pertinent information, not ensuring technical compliance with state recording statutes -- Information provided by seller was sufficient to clearly identify the unit and was “in a form acceptable for recording” in accordance with ILSFDA where seller gave buyer actual proposed declaration, unit number, address, development name, site map, and floor plans and these documents were incorporated into the contract -- Reversed for entry of summary judgment for seller
Reported at 36 Fla. L. Weekly D1519a

Dissolution of marriage -- Alimony -- No abuse of discretion in awarding bridge-the-gap alimony and only nominal permanent alimony given parties' uncertain, evolving financial circumstances -- Competent, substantial evidence supported trial court's conclusion that husband did not dissipate marital funds during pendency of dissolution proceedings -- Equitable distribution -- Trial court erred in treating as a marital asset subject to equitable distribution a future non-compete/non-solicitation payment, which husband was to receive from former employer long after dissolution petition was filed and the marriage was dissolved -- This payment was not comparable to deferred income or stock option in which a spouse's rights vested during the marriage and could not properly be considered a form of retirement -- Trial court erred in characterizing as “unexplained” husband's use of certain bonus received for his labors during marriage and first non-compete payment received from former employer, and in effectively replacing these monies with the future installment payment under non-compete/non-solicit agreement -- Remand for adjustment of equitable distribution
Reported at 36 Fla. L. Weekly D1497a

Injunctions -- Anti-Injunction Act -- District court's order, pursuant to All Writs Act, permanently enjoining a Florida state court from sanctioning counsel for his continued representation of a client in violation of state court order prohibiting that representation was not “necessary in aid of district court's jurisdiction” and, therefore, was issued in violation of Anti-Injunction Act -- Under Anti-injunction Act case law, a district court conviction that a state proceeding has reached or is reaching an erroneous result does not alone warrant an injunction against those proceedings
Reported at 23 Fla. L. Weekly Fed. C77a

Securities -- Fraud -- Maritime torts -- Cruise ship operator brought claims for securities fraud, maritime torts, and common law torts alleging defendants fraudulently misrepresented deteriorating and defective condition of vessel better known as Love Boat from its television days, to induce plaintiff to purchase stock shares of corporation, the principal asset of which was the vessel -- Jurisdiction -- District court erred by dismissing securities fraud claim brought pursuant to section 10(b) and Rule 10b-5 based on conclusion that it lacked federal question jurisdiction over claim because plaintiff failed to allege that purchase or sale of stock took place within United States -- Where Supreme Court precedent establishes that Section 10(b) applies only where security at issue is listed on domestic stock exchange or, if not so listed, where its purchase or sale is made in United States, there is no dispute that stock at issue was not listed on domestic stock exchange, but complaint alleges that transaction for acquisition of stock closed in United States, it cannot be said that alleged transfer of title to shares in United States lies beyond Section 10(b)'s territorial reach -- District court has, at least, supplemental jurisdiction over maritime tort claims because those claims form part of same case or controversy as the securities fraud claim
Reported at 23 Fla. L. Weekly Fed. C92a

Torts -- Product liability -- Tobacco -- Appeals -- Stay pending appeal -- Bond -- Section 569.23(3), Florida Statutes (2010), which limits the amount of bond necessary to obtain an automatic stay of a judgment by a member of a decertified class action against a signatory of the tobacco settlement agreement with the state, is not unconstitutional -- Statute is not a special law granting a privilege to a corporation, and statute does not impermissibly intrude on Florida Supreme Court's authority to regulate practice and procedure in the courts in violation of separation of powers mandate -- Question certified: Does section 569.23(3), Florida Statutes (2010), violate article III, section 11(a)(12) or article II, section 3 of the Florida Constitution by limiting the amount of the bond necessary to obtain an automatic stay of a judgment against a signatory to the tobacco settlement agreement with the State of Florida?
Reported at 36 Fla. L. Weekly D1493a

Torts -- Product liability -- Medical device -- Manufacturing defect -- Patient brought strict products liability action against medical device manufacturer, alleging that manufacturer's SurgiWrap, a bioresorbable barrier used to prevent post-surgical adhesions, had a manufacturing defect that caused it to perform in a manner other than as intended -- Evidence -- Physician testimony -- District court did not abuse discretion in limiting testimony of plaintiff's treating physicians about identity of foreign body surgically removed from plaintiff's abdomen -- Treating physicians' statements that foreign substance removed from patient's abdominal cavity was SurgiWrap was not admissible as lay opinion, but rather, required application of Daubert analysis to determine admissibility -- District court correctly applied Daubert analysis to testimony of patient's gynecologist that SurgiWrap had failed to perform as intended and thus was defective, as such conclusion required some knowledge of how the device should have performed, which was a question outside the ken of a lay witness because it required scientific or other specialized knowledge -- Medical device manufacturer was entitled to summary judgment on strict products liability claim because patient failed to produce evidence, expert or otherwise, from which a reasonable jury could conclude that manufacturer's SurgiWrap, which had been implanted in patient's abdomen to prevent post-surgical adhesions but which allegedly caused an abscess that led to other injuries, contained a manufacturing defect
Reported at 23 Fla. L. Weekly Fed. C56a

Public Employee: FLORIDA PUBLIC EMPLOYEES SUE STATE OVER CHANGES IN RETIREMENT BENEFITS, Williams v. Scott, 25 No. 25 Westlaw Journal Employment 3, Westlaw Journal Employment July 12, 2011
A group of 11 public employees has sued the state of Florida, claiming that the government cannot legally make changes to its retirement system with respect to salary deductions and cost-of-living adjustments. The plaintiffs claim that the plan in Senate Bill 2100, which was signed by Republican Gov. Rick Scott June 22 and took effect July 1, violates the Florida Constitution. They say the plan interferes with the deal they and others had with the state and impairs their right to collectively bargain

State Farm Mut. Auto. Ins. Co. v. Bowling ,(Fla.App. 2 Dist.)
Insurance - Exclusion of testimony of insurer's expert witness, a licensed registered medical coder, was improper in UM action.
The witness's knowledge, skill, experience, training, and education qualified her as an expert witness for the automobile insurer in an action for uninsured motorist (UM) coverage, as required to support the admission of her proffered testimony regarding whether the insured's medical bills were properly coded, whether they corresponded to the medical records documenting his purported treatment, and whether they were reasonable. The witness was a licensed registered medical coder, which allowed for auditing of documentation, billing, and coding of physician offices and hospitals. She attained the status of a diplomate of a national board of forensic examiners. She gained professional experience analyzing and reviewing medical coding for various clients, both plaintiff and defense.

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Monday, July 11, 2011

Dissolution, real property, appeals and coffee-anisette tiramisu

Dissolution of marriage -- Real property -- Partition -- Dismissal of petition -- Where consent supplemental final judgment required former husband to submit three bona fide applications to refinance certain rental property and, if approved, to pay former wife $90,000 for her interest or, failing that, provided that the property was to be sold and the proceeds split equally; husband, after submitting one application and being pre-approved, failed to submit any other financing applications or otherwise obtain financing; and wife moved for contempt, requesting trial court to order husband to submit applications for financing or, alternatively, to grant her power of attorney to sell the property, the trial court erred in, instead, granting wife a $90,000 judgment, relief which was not sought by wife and which was inconsistent with consent supplemental final judgment's terms -- Instead of filing petition for partition, wife should have sought relief from judgment or appealed entry of money judgment -- Under circumstances, appropriate course of action is to treat partition petition as motion for relief from final judgment and remand to trial court for enforcement of terms of consent judgment
Reported at 36 Fla. L. Weekly D1485a

Guardianships -- Property of minor -- Proceeds from settlement of personal injury lawsuit -- Approval of settlement -- Trial court erred as matter of law in denying request made by guardian of minor's property for approval of structured portion of proposed settlement agreement on ground that court lacked authority to approve agreement where the terms of the agreement would remain in effect after the date minor reached age of majority -- Statutory limitations placed on creation or amendment of revocable or irrevocable trust agreements which extend beyond the disability of the ward were not at issue in instant case, which did not involve trust documents, but instead a proposed annuity contract which the parties and the trial court agreed was in minor's best interest -- Statute does not prohibit entering into annuity contract so long as annuity contract is delivered to ward at termination of the guardianship
Reported at 36 Fla. L. Weekly D1484a

Insurance -- Uninsured motorist -- Evidence -- Expert -- Trial court abused its discretion in excluding testimony of insurer's medical billing and coding expert where insurer argued that insured's medical providers fabricated or exaggerated medical care necessary for insured's alleged injuries and expert's testimony that bills did not correlate to treatment in medical records was relevant to prove this defense -- Expert's testimony regarded a technical matter of which jury did not have basic knowledge -- It was clear from expert's deposition that she had specialized knowledge and training to express opinion on whether bills were properly coded and whether they corresponded to medical records documenting the purported treatment -- New trial required
Reported at 36 Fla. L. Weekly D1487e

Torts -- Product liability -- Asbestos -- Asbestos and Silica Compensation Fairness Act, which provides that a claimant bringing an action for damages from exposure to asbestos must plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor, is unconstitutional as applied retroactively to claimants who had an accrued cause of action for injuries allegedly sustained due to asbestos exposure but who did not have an actual physical impairment -- Changes in the lungs evidencing asbestos-related disease are sufficient to trigger a cause of action, and there is no requirement that a plaintiff must exhibit a particular impairment -- Plaintiffs who suffer from actual lung injuries that are consistent with asbestos-related disease had accrued causes of action, and those causes of action constituted a property interest in which they had a vested right
Reported at 36 Fla. L. Weekly S435a
Wrongful death -- Airplane crash -- Vicarious liability for death of passenger -- Dangerous instrumentalities -- Federal preemption -- District court erred in affirming summary judgment in favor of lessor of airplane on ground that, because lessor was not in actual possession or control of aircraft at time of crash, lessor was not responsible under provisions of federal statute -- To extent dangerous instrumentality doctrine, which imposes vicarious liability upon the owners and lessors of aircraft, even where the aircraft is not within their immediate control or possession at the time of loss, applies to injuries, damages, or deaths that occur on the surface of the earth, the doctrine conflicts with, and is therefore preempted by, section 49 U.S.C. section 44112, which limits liability of lessor, owner, or secured party under certain circumstances -- However, wrongful death action is not preempted in instant case where death of passenger occurred while he was a passenger in a plane that crashed, not on the ground beneath the plane
Reported at 36 Fla. L. Weekly S441a

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Sunday, July 10, 2011

FDUTPA, attorney's fees, with pecan, wasabi and cranberry encrusted tuna

In Horowitch v. Diamond Aircraft Industries, Inc., Slip Op. July 7, 2011, the 11th Circuit certified four questions to the Florida Supreme Court regarding Florida's Sec. 768.79 offer of judgment statute, regarding Florida Rule Civil Procedure 1.442 and the the fee-shifting provision of the Florida Deceptive and Unfair Trade Practices Act [FDUTPA] Sec. 501.2105.
"First, we ask whether an offer of judgment may be viable when it purports to  settle “all claims,” even though it does not explicitly “state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim” as required by Rule 1.442(c)(2)(F). Second, we ask whether the offer of judgment statute, which applies in “any civil action for damages” but generally does not apply to a case seeking both damages and non-monetary relief, applies to a lawsuit seeking damages or, in the alternative, specific performance. Third, we ask whether the FDUTPA’s fee-shifting provision applies to an action with the following procedural history: the plaintiff filed an action alleging a FDUTPA claim and prosecuted that claim for seven months; the district court ruled at summary judgment that he could not pursue the FDUTPA claim because Florida law did not apply, but allowed him to prosecute the action under Arizona’s unfair trade practices law instead; then he lost on the Arizona unfair trade practices claim at trial. Finally, if the FDUTPA’s fee-shifting provision does apply, we ask whether it applies only to fees incurred during the seven months before the plaintiff’s  FDUTPA claim was defeated at summary judgment, or also to fees incurred during the subsequent litigation.  We certify these questions because we are unable to find definitive answers in clearly established Florida law as set forth in case law or statutes."   The appellate briefs and record on appeal are also being transmitted to the Florida Supreme Court to adjudge these questions.  More.

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