Sunday, January 22, 2012

Attorneys' fees, child support, medical malpractice and cornish game hen roasted with maple syrup, mustard, thyme and Port

Attorney's fees -- Prevailing party -- Error to award fees to attorney who failed to testify at hearing

Child support -- Paternity -- Child born during intact marriage -- Department of Revenue petition to establish paternity and child support, filed against legal father and against putative biological father -- Trial court erred in granting putative biological father's motion to dismiss without considering child's best interests -- Remand for hearing to determine whether, in light of fact that child's legitimacy will remain intact, it would be in best interests of child to allow DOR to pursue its paternity action against putative father

Civil procedure -- Default -- Error to grant motion to vacate 1992 default final judgment on ground that plaintiffs were unable to provide a return of service without first conducting evidentiary hearing to determine whether defendant was served with process prior to entry of default judgment -- Return of service is not the only means by which plaintiff can prove that there has been valid service of process on defendant prior to entry of default judgment -- Certified printout of clerk's progress docket and certified copy of final judgment on default together constituted evidence which afforded a reasonable basis for the conclusion that more likely than not service of process on defendant was properly perfected before final default judgment was issued -- On remand, trial court should treat this documentary evidence as creating a rebuttable presumption affecting the burden of producing evidence -- Accordingly, defendant will have burden of introducing credible and admissible evidence showing he was not properly served with process prior to entry of default judgment, and if he is able to do so, trial court will then weigh evidence and resolve the question of fact at issue
NANCY C. BLOCK and JOHN E. STEPHENS, JR., as Trustees of the Jackson Martindell Trust dated December 30, 1988, Appellants, v. RIP TOSUN, Appellee. 4th District.

Insurance -- Automobile -- Homeowners -- Circuit court properly found that homeowner's insurer, not issuer of automobile policy, was liable for indemnity and defense of claims against an insured who, while passenger in car driven by girlfriend and owned by girlfriend's parents, repeatedly reached over and grabbed steering wheel without altering direction of vehicle -- Accident which occurred when driver swerved as she was trying to push insured away was not covered by automobile policy -- Passenger's grabbing of steering wheel to annoy driver was not “use of . . . a non-owned auto” within meaning of automobile policy; and damages claimed did not fall within provision of homeowners policy excluding claims for bodily injury or property damage arising out of ownership, maintenance, or use of motor vehicle -- Further, because vehicle was non-owned auto within meaning of automobile policy, coverage was available only if insured was “driving” “with the permission, or reasonably believed to be with the permission of the owner,” and it was not reasonable to believe that insured's horseplay was in any way sanctioned by owners of vehicle
SUNSHINE STATE INSURANCE COMPANY, Appellant, v. CHRISTOPHER JONES, DEBRA WATSON-JONES, NICHO WATSON, MICHELE BALDASTI, by and through her mother and legal guardian, STACY BALDASTI, and KAYLA MINEO, by and through her mother and legal guardian, CHERYL MINEO, and GEICO GENERAL INSURANCE COMPANY, Appellees. 4th District.

Torts -- Medical malpractice -- Provision of medical care and services -- Limitation of actions -- Claim that injuries resulting from a fall from a test table at hospital were a result of nurse failing to exercise reasonable care in assisting plaintiff onto a gurney -- Negligence alleged arose out of the provision of medical care and services where injury occurred while nurse was trying to move plaintiff from test table to gurney after it was thought that plaintiff was suffering from an allergic reaction to dye given to plaintiff for CT scan -- No error in granting defendants' motion for summary judgment where, because claims were determined to be ones of medical negligence, claims were barred by two-year statute of limitations and plaintiff's failure to comply with presuit requirements
CHRISTINE D. STUBBS, Appellant, v. SURGI-STAFF, INC. and LORENZO RIVERA, Appellees. 4th District.

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