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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