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Monday, August 24, 2015
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
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