Criminal law appeals, business disputes, insurance coverage with fresh tomatoes, basil and mozzarella

Miranda Const. Development, Inc. v. Mid-Continent Cas. Co. ,(S.D.Fla.)

Insurance - "Your work" exclusion in commercial general liability policy applied to claim for defective construction of home.

Under Florida law, the "your work" exclusion in a commercial general liability policy issued to an insured home builder applied to a claim against the insured seeking damages resulting from the insured's alleged defective construction of a home's foundation. Although the complaint alleged damage "including but limited to the flooring, trusses, roof, and walls," it was clear that the claim for damages related solely to the home itself and the insured's alleged defective construction. There were no allegations of damage to personal property or to property other than the home itself.

Torts -- Medical malpractice -- Birth-Related Neurological Injury Compensation Act -- Hospitals -- Where it was undisputed that the only attending obstetrician at time of infant's delivery was not a “participating physician” as defined by NICA, hospital was not protected by NICA from tort claim, even though hospital had given statutorily-required NICA notice -- Remedies and protections afforded by NICA are limited to those cases in which obstetric services were provided by participating physician at infant's birth

ORLANDO REGIONAL HEALTHCARE SYSTEM, INC., etc., Petitioner, v. SARAH GWYN AND BRIAN GWYN, etc., Respondents. 5th District.

Negligent Misrepresentation: PARENTS SEEK CHILD-REARING EXPENSES FOR BABY BORN AFTER FAILED VASECTOMY, Bassinger v. Oregon Healthcare Res., 6 No. 18 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice February 11, 2011

An Oregon couple who conceived a child after being told that the husband's vasectomy was successful are seeking more than $675,000 in child-rearing expenses from the doctor who allegedly botched the procedure. In a lawsuit filed in the Lane County Circuit Court, Scott and Donnita Bassinger allege Dr. Stephan Schepergerdes negligently misrepresented to them that a sperm count conducted after Scott's March 30, 2007, vasectomy confirmed he was sterile.

Failure to Warn: CALIFORNIA APPEALS COURT BACKS DISMISSAL OF SURGICAL TOOL INJURY SUIT, Courtenay v. U.S. Surgical Corp., 6 No. 18 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice February 11, 2011

A California appeals court has affirmed dismissal of a failure-to-warn suit against the maker of a gynecological surgical tool by a woman who says she was injured during a procedure to implant a supportive mesh device. Elisabeth Courtenay turned to the 2nd District Court of Appeal after a trial judge granted summary judgment to Tyco Healthcare Group and U.S. Surgical Corp.Her claims related to the use of the IVS Tunneller during a 2004 abdominal operation.

Legal Malpractice: MISSISSIPPI HIGH COURT REVIVES MALPRACTICE SUIT AGAINST ATTORNEY, Bennett v. Hill-Boren P.C., 6 No. 18 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice February 11, 2011

The Mississippi Supreme Court has ruled that a woman can pursue legal malpractice allegations against two attorneys who allegedly failed to serve a summons to a defendant in a wrongful-death lawsuit. The trial court incorrectly granted summary judgment to attorney Leonard B. Melvin Jr. on the ground that Mattie Bennett's and Dorothy Washington's malpractice claims were barred by a three-year statute of limitations, the Supreme Court ruled.

Intentional Acts: HERPES INFECTION NOT AN 'ACCIDENT,' NEW JERSEY APPEALS COURT RULES, D.V. v. N.J. Mfrs. Ins. Co., 21 No. 17 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage February 4, 2011

A New Jersey insurance company need not defend a policyholder in a lawsuit in which her ex-boyfriend alleges she intentionally failed to disclose her herpes infection to him, a state appellate court has ruled. The Superior Court Appellate Division upheld a lower court's decision that New Jersey Manufacturers Insurance Co. properly denied coverage to a policyholder identified only as "D.V."The court ruled that since D.V. knew she carried the herpes virus, transmission of the disease to her ex-boyfriend was not an accident.

Settlement Dispute: INSURER'S FINDING OF CONTRIBUTORY NEGLIGENCE COULD BE BAD FAITH, Zintel v. Progressive N. Ins. Co., 21 No. 17 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage February 4, 2011

An insurance carrier might have acted in bad faith when its agent calculated contributory negligence into a claim evaluation for a policyholder who was struck by a pickup truck, a Pennsylvania federal judge has ruled. U.S. District Judge James M. Munley of the Middle District of Pennsylvania said a reasonable jury could find that the insurer knew it lacked a reasonable basis to reduce its claim evaluation but did so anyway.

Civil rights -- Speech -- Retaliation -- Due process -- Former nursing student brought Section 1983 action against college and administrators alleging that her suspension from Licensed Practical Nursing Program violated her free speech and due process rights -- Qualified immunity -- Defendants were entitled to qualified immunity on claim that plaintiff was suspended in retaliation for reporting one of her instructors for falsifying attendance records, in violation of First Amendment, where there is factual dispute as to whether plaintiff's protected speech of reporting instructor was motivating factor in her suspension from Nursing Program, and, even if there was retaliatory motive, record establishes that school administrators also possessed lawful motive for suspending plaintiff and reasonably believed that they would have suspended plaintiff in absence of her protected speech because of her other conduct -- Under facts of case, district court did not err in deciding that, for qualified immunity purposes, school administrators in their position could have reasonably believed that suspending plaintiff would not violate her First Amendment free speech rights -- Defendants were entitled to qualified immunity on claim that plaintiff was suspended without meaningful opportunity to respond to charges against her in violation of Due Process Clause of Fourteenth Amendment -- Even though school administrators deprived plaintiff of pre-suspension hearing, based on facts of case, district court did not err in deciding that, for qualified immunity purposes, it was not clearly established at time plaintiff was suspended that the immediate availability of appeals process would not have adequately protected plaintiff's due process rights

SARA CASTLE, Plaintiff-Appellant, v. APPALACHIAN TECHNICAL COLLEGE, JASPER GEORGIA, In their individual and official capacities, et al., Defendants, JOAN THOMPSON, Vice President, in their individual and official capacities, DR. TRINA BOTELER, Executive Affairs Officer, in their individual and official capacities, Defendants-Appellees. 11th Circuit.

Contracts -- Real property sale -- Rescission -- Interstate Land Sales Full Disclosure Act -- District court did not err in dismissing complaint seeking rescission of land purchase contracts and damages pursuant to ILSA, after considering forum selection clause in purchase contracts designating Bahamas as exclusive venue for any litigation concerning or related to contract and finding that venue was foreclosed in Florida -- District court's enforcement of forum selection clause did not deprive plaintiffs of their right to choose the venue for their ILSA claims and was not contrary to public policy

KENNETH W. LILES, PATRICIA M. LILES, EDWARD R. WEBB, JAMES JOSEPHSON, WILLIAM J. ANDREWS, JR., MARK R. ROODVOETS, JON D. ANDREWS, CHARLES B. LESESNE, JERRY A. CICOLANI, JR., KRIS BRENEMAN, DANA F. BALLINGER, SUSAN KHERKHER, THOMAS E. LAMMERTSE, MARY L. SIPSKI, RONALD P. VAN, as trustee of the Ronald P. Van Jr. Revocable Trust, KATHY JO VAN, as trustee of the Kathy Jo Van Revocable Trust, Plaintiffs-Appellants, v. GINN-LA WEST END, LIMITED, ROBERT F. MASTER, II, EDWARD R. GINN, III, Defendants-Appellees, GINN FINANCIAL SERVICES, et al., Defendants. 11th Circuit.

Employer-employee relations -- Family and Medical Leave Act -- Interference with FMLA rights -- District court correctly found that employee's Department of Labor complaint did not bar her from filing civil action against employer for interfering with her statutory right to request medical leave and for firing her in retaliation for her protected leave request in violation of FMLA -- Agency regulations which allow an employee to file either agency complaint or civil suit, but not both, cannot contravene statute providing a right to a cause of action and specifically listing the limitations terminating the right of action -- District court correctly excluded causal nexus from recitation of elements of interference claim, but employer was entitled to raise lack of causation as affirmative defense -- Error in failing to give jury instruction on defense of lawful reasons for termination was harmless because jury specifically rejected defense in its special verdict

DIANE SPAKES, Plaintiff-Appellee, v. BROWARD COUNTY SHERIFF'S OFFICE, Defendant-Appellant. 11th Circuit.

Labor relations -- Fair Labor Standards Act -- Overtime -- Motor carrier exemption -- Shuttle service that provides ground transportation services to general public traveling to and from local airports was entitled to summary judgment on former shuttle driver's claim for overtime under Fair Labor Standards Act on ground that airport shuttle van drivers fall under motor carrier exemption to FLSA and therefore are exempt from FLSA's overtime provisions -- Plaintiff is subject to motor carrier exemption where undisputed evidence shows that shuttle service is subject to Secretary of Transportation's jurisdiction under Motor Carrier Act and plaintiff's work-related activities as airport shuttle driver directly affected safety of operation of motor vehicles in transportation of passengers on public highways in interstate commerce within meaning of Motor Carrier Act

STEVEN ABEL, on his own behalf and all others similarly situated, Plaintiff-Appellant, v. SOUTHERN SHUTTLE SERVICES, INC., a Florida Corporation, Defendant-Appellee. 11th Circuit.

Contracts -- Construction -- Agreement between contractor and subcontractor for subcontractor to manufacture staircase and flooring system for renovation being performed by contractor -- Trial court properly found that a valid contract existed although contractor did not sign subcontractor's final proposal where contractor accepted proposal by its actions of paying initial deposit and subsequently invoiced payments -- Where contract provided that subcontractor was to “engineer, fabricate and install” the staircase and flooring system, but also provided that the final progress payment was “due upon supervision of installation,” the contract was ambiguous as to whether subcontractor was to install the staircase and flooring system or only supervise the installation, and court properly allowed presentation of parol evidence to establish the parties' intent -- Judgment finding that contractor breached contract by failing to make a payment was internally inconsistent where court also found that the payment had not been invoiced by subcontractor -- Judgment finding contractor to be in breach of contract reversed

L & H CONSTRUCTION COMPANY, INC., Appellant, v. CIRCLE REDMONT, INC., Appellee. 5th District.

Counties -- Rezoning -- Inconsistency with comprehensive plan -- No error in entering summary judgment in favor of defendants in action challenging county's approval of application for rezoning of parcel to allow for automotive repair and service shop where automotive repair facility was an allowed use within the subject parcel's future land use category

D. DOUGLAS REHMAN, Appellant, v. LAKE COUNTY, FLORIDA, ET AL., Appellee. 5th District.

Child support -- Income -- Amount paid to father by Veteran's Administration for benefit of child should have been included in father's income and the total family income figure -- Remand for recalculation of child support

EDWARD W. MASLOW, Appellant, v. JULIANNE M. EDWARDS AND DEPARTMENT OF REVENUE, Appellee. 5th District.

Insurance -- Uninsured motorist -- Bad faith -- Error to lift abatement of bad faith claim while insurer's appeal of excess judgment was pending

ILLINOIS NATIONAL INSURANCE CO., Petitioner, v. PATRICIA BOLEN, Respondent. 5th District.

Insurance -- Uninsured motorist -- Umbrella policy -- Stacking -- Trial court properly determined that policy issued to insured who owned four automobiles was a non-stacking policy where a single premium was paid for coverage, and no separate premium paid for each automobile

NATHAN SIMMONS, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. 5th District.

Civil procedure -- Parties -- Anonymity -- Civil suit brought by anonymous plaintiffs for damages stemming from films produced by defendants in which plaintiffs, while under age of eighteen, exposed their breasts and engaged in sexually explicit acts -- District court abused discretion in denying plaintiffs' motion to proceed anonymously at trial where court incorrectly deemed some of plaintiffs' conduct “casual and voluntary” and improperly discounted expert evidence of harm that revealing their identities would cause the plaintiffs -- None of normal harms threatened to defendants when plaintiffs proceed anonymously are present in instant case -- Remanded for entry of order allowing plaintiffs to remain anonymous, subject to limitations posed by First Amendment on prior restraint on speech -- Appellate court would not address claim that requested limitations on press's ability to cover the trial constitute prior restraint in violation of First Amendment where district court had not addressed issue in first instance

PLAINTIFF B, Plaintiff-Appellant, FLORIDA FREEDOM NEWSPAPERS, INC., Intervenor-Appellee, PLAINTIFF J, PLAINTIFF S, PLAINTIFF V, Plaintiffs-Appellants, v. JOSEPH R. FRANCIS, MRA HOLDINGS LLC, MANTRA FILMS INC., AERO FALCONS, LLC, Defendants-Appellees. NATIONAL CRIME VICTIM LAW INSTITUTE, SOUTHERN NEWSPAPER PUBLISHER'S ASSOCIATION, Amicus Curiae. 11th Circuit.

Civil rights -- Prisoners -- Speech -- Retaliation -- State prisoner filed retaliation claim under 42 U.S.C. section 1983 alleging prison official violated his First Amendment rights when she disciplined prisoner for filing inmate grievance and for speaking to her in manner she found disrespective -- Error to grant summary judgment in favor of prison official where genuine issues of material fact remain as to causal relationship between inmate's use of large upper case letters in his grievance and discipline imposed, and as to causal relationship between inmate's statements to prison official about contacting his attorney and official's subsequent actions -- As matter of law, an inmate's statement that he wants or plans to contact his attorney does not constitute a punishable “spoken threat” -- Damages -- District court erred when it sua sponte granted summary judgment in favor of prison official on issue of compensatory damages where court did not provide notice that it intended to rule on compensatory damages claim during summary judgment proceedings

LEWIS MARTIN MOTON, JR., Plaintiff-Appellant, v. CAPTAIN B.E. COWART, Defendant-Appellee, W.O. SHEETZ, LT. PRIETO, Defendants. 11th Circuit.

Criminal law -- Sentencing -- Federal guidelines -- Career offender -- Prior convictions -- Error to sentence defendant as career offender where his prior conviction for cocaine trafficking did not constitute a controlled substance offense -- Because appellate court was required to assume that defendant's prior conviction involved only the purchase of cocaine where district court was unable to determine statutorily-prohibited act for which defendant was convicted, and because act of purchase is not included in definition of controlled substance offense under section 4B1.2(b), defendant's prior conviction was not a “controlled substance offense”

USA, Plaintiff-Appellee, v. JERMON SHANNON, JR., a.k.a. Winfield Winchester Roye, Defendant-Appellant. 11th Circuit.

Criminal law -- Sentencing -- Federal guidelines -- Offense level -- Error to include in offense level calculation a two-level enhancement for unduly influencing a minor to engage in prohibited sexual conduct, where only “minor” involved in case was undercover law enforcement officer posing as underage child -- Amendment 732, which became effective after date of defendant's sentencing hearing and states that undue influence enhancement does not apply when only “minor” involved is undercover officer, is clarifying amendment that should be applied retroactively to defendant's direct appeal of his sentence

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SETH JERCHOWER, Defendant-Appellant. 11th Circuit.

Criminal law -- Murder -- Death penalty -- Post conviction relief -- No error in concluding that defendant was not mentally retarded -- Circuit court erred in its application of standard error of measurement to one of defendant's IQ scores, and language of circuit court's order does not demonstrate beyond reasonable doubt that the error did not contribute to court's conclusion that defendant failed to establish subaverage intellectual functioning -- However, competent, substantial evidence supported circuit court's determination that defendant failed to establish deficient adaptive functioning -- Evidence -- Even if, as defendant claims, circuit court improperly allowed a number of documents to be admitted into evidence and improperly allowed a former defense expert to testify for the state, any error was harmless where language of order demonstrated beyond reasonable doubt that challenged evidence did not contribute to conclusion that defendant failed to establish mental retardation -- Court notes that, while post conviction court had authority to take judicial notice of prior post conviction proceeding and certain letters in court files, documents are still subject to same rules of evidence to which all evidence must adhere -- Further, it is important for attorneys to ensure that record reflects identifying information as to which piece of evidence is being referenced and addressed during proceeding

DONALD WILLIAM DUFOUR, Appellant, v. STATE OF FLORIDA, Appellee. Supreme Court of Florida.

Criminal law -- Sentencing -- Resentencing -- Guidelines departure sentence -- Decisions of U.S. Supreme Court in Apprendi v. New Jersey and Blakely v. Washington, under which a judge may impose sentence based solely on facts reflected in a jury verdict or admitted by defendant except for the fact of a prior conviction, apply to de novo resentencing proceedings that were not final when Apprendi and Blakely issued regardless of whether the defendant's conviction and sentence were final before Apprendi and Blakely issued

STATE OF FLORIDA, Petitioner, vs. CHRISTIAN FLEMING, Respondent. Supreme Court of Florida.

Criminal law -- Appellate counsel -- Ineffectiveness -- Although appellate counsel was deficient for failing to file motion to correct sentencing error which had not been preserved by trial counsel where defendant would have been entitled to relief under case law in effect at the time of defendant's appeal, defendant is not entitled to relief on claim of ineffective assistance of appellate counsel where that case law has been disapproved by Florida Supreme Court -- Question certified: When a petitioner clearly alleges deficient performance on the part of appellate counsel based on case law in effect at the time of the appeal that would have resulted in relief had appellate counsel raised the issue on appeal, but the case law upon which the petitioner bases the claim is subsequently disapproved, is the petitioner still prejudiced by appellate counsel's deficient performance and thus entitled to relief through a petition alleging ineffective assistance of appellate counsel?

DEANDRE T. WOODRUFF, Petitioner, v. STATE OF FLORIDA, Respondent. 2nd District.

 
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Rosemary walnut biscuits with orange blossom honey, criminal law, contracts and insurance

Standard jury instructions -- Criminal -- Amendment -- Manslaughter
Reported at 35 Fla. L. Weekly S209a

Criminal law -- Aggravated battery with deadly weapon -- Self-defense -- Jury instructions -- Under circumstances, it was fundamental error to instruct the jury on the forcible felony exception to self-defense
Reported at 35 Fla. L. Weekly D808a

Criminal law -- Aggravated assault by threat with firearm -- Jury instructions -- Trial court did not commit fundamental error by including “and/or” conjunction between the names of the victims in jury instruction where, based on totality of circumstances, there was overwhelming evidence that defendant committed an assault on all the victims named in the instruction
Reported at 35 Fla. L. Weekly D815a

Criminal law -- Attempted lewd and lascivious battery -- Computer pornography -- Child exploitation -- Due process -- Outrageous government conduct -- Entrapment -- Law enforcement's use of reverse sting operation coordinated by private organization whose volunteers simply entered online chat rooms and waited for someone to solicit sexual activity from a person believed to be a minor was not so outrageous that due process considerations would bar prosecution -- Volunteers did nothing more than create an opportunity, and this conduct was not prohibited -- Although volunteer organization had a contingency fee arrangement with national broadcasting company, undisputed facts show that defendant was not solicited, induced, or otherwise lured into seeking liaison with volunteer decoy, and any concern that organization had incentive to manufacture crime or commit perjury was alleviated by fact that every conversation between defendant and decoy was electronically recorded and stored -- Failure of law enforcement to supervise or monitor volunteers did not violate due process -- Conviction of attempted lewd and lascivious battery was supported by sufficient evidence regarding preparatory steps defendant took towards consummating his desire to have sex with a thirteen-year-old and fact that defendant drove 200 miles to decoy home and arrived at prearranged time with flowers, chocolates, lubricant, and condoms
Reported at 35 Fla. L. Weekly D803c

Criminal law -- Prohibition -- Trial court erred when, after jury was sworn and over defendant's objection, it declared mistrial without engaging in any consideration of alternatives to mistrial and, thus, without determining that mistrial was a manifest necessity -- Defendant entitled to discharge
Reported at 35 Fla. L. Weekly D809g

Torts -- Automobile accident -- Rear end collision -- Accident occurring when motorcycle collided with rear end of defendant's automobile which stopped suddenly at an intersection where defendant had the right-of-way -- Presumption of negligence on part of driver of rear vehicle is not applicable in action by passenger of rear vehicle against driver of lead vehicle -- Issue is whether defendant was negligent as forward driver -- To the extent there exists evidence demonstrating that defendant was negligent as the forward driver, summary judgment against plaintiff is improper whether or not the presumption of following driver's negligence was rebutted
Reported at 35 Fla. L. Weekly D805b

Insurance -- Uninsured motorist -- Stacking -- Where insurer issued policy to Florida residents covering vehicles registered and principally garaged in Florida and also issued and delivered to insureds in Florida a policy covering vehicle which was registered and principally garaged in Delaware, an anti-stacking provision in the Delaware policy is unenforceable under Florida law where the insurer did not obtain the insureds' informed consent to the provision
Reported at 35 Fla. L. Weekly S201a

Attorney's fees -- Charging lien -- Trial court properly denied law firm's motion to impress charging lien on homeowner's insurance proceeds for damages caused to homestead property by hurricane -- When a homestead is damaged, the proceeds of any insurance recovery for the damage is constitutionally exempt property
Reported at 35 Fla. L. Weekly D767a

Civil procedure -- Dismissal -- Untimely service of process -- Trial court abused discretion in entering order of dismissal upon granting motion to quash service of process for failure to serve defendant within 120 days of filing of amended complaint, where statute of limitations had run at time of dismissal, defendant had been served before dismissal, and plaintiff demonstrated good cause for failure to timely serve defendant -- Provision to plaintiff of incorrect and misleading information regarding defendant's address by defendant's employer, who was also a defendant, coupled with defendant's postponement of scheduling of his deposition on numerous occasions, amounted to good cause for failure to serve defendant within 120-day period
Reported at 35 Fla. L. Weekly D764a

Civil procedure -- Creditors' rights -- Discovery in aid of execution -- Contempt -- In entering order on motion to compel discovery, trial court erred in retrospectively imposing sanctions payable to judgment creditor where order to compel did not find debtor in contempt -- Although, even without an adjudication of contempt, court may properly order a properly noticed party who fails to appear for deposition to make other parties whole for financial losses that the failure to appear causes, sanctions in order to compel cannot be upheld because no evidence was adduced to prove relationship sanction bears to reasonable expenses caused by failure to appear -- Order finding debtors in contempt for failure to comply with order requiring them to file fact information sheets using form 1.977 and imposing monetary sanctions is ambiguous on the question whether the monetary sanctions are criminal or civil in nature -- Monetary sanctions cannot be construed as criminal because the moneys are ordered to be paid to a private party -- Retrospective portions of monetary sanctions cannot be upheld as valid, compensatory, civil contempt sanctions because there is no evidence that the amount of sanctions has any relationship to the amount of damages suffered as result of debtor's failure to comply with trial court order
Reported at 35 Fla. L. Weekly D792a

Condominiums -- Assessment liens -- Assessment lien could not properly be imposed in favor of condominium association upon a unit for the repair of an air conditioner under either the declaration of condominium or the 1976 Condominium Act
Reported at 35 Fla. L. Weekly D768a

Contracts -- Statute of frauds -- Commercial lease was unenforceable where lease was for term in excess of one year but lacked two subscribing witnesses as required by section 689.01 -- Two signatures were required regardless of whether lease was deemed new or a renewal -- Conflict -- Doctrine of estoppel does not apply -- Tenant did not change its position in more than an insubstantial way where it was notified prior to effective date of new lease that it lacked two subscribing witnesses, and original lease was still in effect and not due to expire until nearly a year later -- Civil procedure -- Abuse of process -- Trial court properly dismissed counterclaim alleging complaint filed by plaintiff in an earlier case and subsequently voluntarily dismissed, and subsequent amendments to the complaint in this case constituted an abuse of process -- Plaintiff's presuit sentiments are irrelevant
Reported at 35 Fla. L. Weekly D782a

Contracts -- Real property sale -- Statute of frauds -- Joint venture agreement -- Evidence was sufficient to support trial judge's conclusion that there had been oral extension of due diligence period stated in agreement for purchase of property for development -- Parol evidence rule, which applies to oral agreements between the parties to a written contract which are made before or at the time of execution of the contract, did not prohibit evidence of subsequent oral agreement to extend due diligence period -- Oral extension of due diligence period did not violate provision of contract requiring that modifications would not be binding unless in writing, signed, and delivered by the party to be bound where purchaser relied on extension of due diligence period in its effort to bring about a joint venture which parties to contract were pursuing -- Statute of frauds -- Doctrine of estoppel prevents defendant from relying on statute of frauds to invalidate its agreement to extend due diligence period where purchaser changed its position in reliance upon the oral extension -- Accordingly, purchaser could terminate contract during extended due diligence period and obtain return of its deposit -- Damages -- Discussions regarding joint venture agreement were insufficient to support damage award where evidence established, at most, an agreement to agree -- Moreover, oral joint venture agreement for entire project is unenforceable because, as an agreement that is not to be performed within one year, it violates statute of frauds -- Defendant entitled to judgment in its favor on claim involving breach of joint venture agreement
Reported at 35 Fla. L. Weekly D774a

Unemployment compensation -- Voluntary termination of employment -- Misconduct -- Where claimant signed a memorandum acknowledging that his disruptive behavior adversely affected his work and the workplace, and that he had to rectify his behavioral problems, and claimant engaged in more disruptive behavior within days after signing memorandum, defendant was guilty of misconduct connected with his work -- Where employer placed claimant on thirty-day leave of absence so that he could get help for his psychological problems, and claimant filed for unemployment compensation benefits during that thirty-day period, claimant was not terminated from his job, but voluntarily quit -- Error to find that claimant was qualified to receive unemployment compensation benefits
Reported at 35 Fla. L. Weekly D771a

Venue -- Joint residency rule -- Individual defendant had venue privilege in his county of residence where cause of action also accrued in that county -- Individual defendant maintained this venue privilege, even though he was sued together with a corporation which also had its business residence in the same county as the individual defendant and a second corporation which maintained its principal business residence in another county -- No error in granting motion to transfer venue to county in which individual defendant resided and cause of action accrued
Reported at 35 Fla. L. Weekly D779a

Nursing homes -- Wrongful death -- Violation of resident's rights -- Discovery -- Confidentiality of nursing home residents' personal and medical records -- Trial court did not depart from essential requirements of law in compelling defendant nursing home to provide plaintiff the name, birth date, social security number, and forwarding and contact persons of a former nursing home resident whom plaintiff seeks to locate as a material witness -- Trial court's order is narrowly tailored, and court properly balanced the individual former resident's privacy considerations against plaintiff's need for information already possessed by nursing home
Reported at 35 Fla. L. Weekly D814a

Torts -- Insurance brokers -- Action alleging that defendant insurance brokers negligently created a “gap” in professional liability insurance coverage for insured by failing to have in place coverage under new policy upon expiration of term of original policy which was not renewed -- Surplus Lines Law, which governs insurance policies at issue, requires that insurer give insured at least 45 days' advance notice if policy is not to be renewed, and provides that if insurer fails to provide the 45-day notice, coverage will remain in effect until 45 days after notice is given or until the effective date of replacement coverage obtained by the insured -- Because insurer failed to provide the required notice of nonrenewal to insured, coverage under policy continued until the effective date of replacement policy procured by defendant, and any negligence on part of defendant did not result in damages to insured -- Trial court erred in finding that defendant created a gap in coverage
Reported at 35 Fla. L. Weekly D794a

Assault & Battery: FAILURE TO DEFEND CLUB FOR POST-ASSAULT NEGLIGENCE WAS BAD FAITH, Am. Best Food v. Alea London Ltd., 5 No. 24 Andrews Insurance Bad Faith Litig. Rep. 1, Andrews Insurance Bad Faith Litigation Reporter April 6, 2010
In a case of first impression in the state, Washington's highest court has ruled that post-assault negligence that allegedly exacerbated a nightclub patron's gunshot injuries did not fall under an assault-and-battery exclusion in the club's insurance policy. The en banc ruling also found that the insurer acted in bad faith when it "gave itself the benefit of the doubt rather than give that benefit to its insured" by interpreting the policy in its favor and refusing to defend the nightclub.

Class Action: JUDGE OKS BAD-FAITH CLAIM IN PREMIUM REFUND CLASS ACTION, Pate v. Guarantee Trust Life Ins. Co., 5 No. 24 Andrews Insurance Bad Faith Litig. Rep. 2, Andrews Insurance Bad Faith Litigation Reporter April 6, 2010
An Ohio federal judge has determined that plaintiffs in a putative class- action lawsuit can move forward with their claim that an insurer acted in bad faith when it failed to fully refund unearned premiums they paid on policies covering their car loans. U.S. District Judge James S. Gwin of the Northern District of Ohio rejected the insurer's contention that state law does not recognize an independent cause of action for bad faith in such cases.In so ruling, the judge refused to limit bad-faith.

Fresh green mix of healthy law

Approved by the Governor June 16, 2009.
2009 Fla. Sess. Law Serv. Ch. 2009-193 (C.S.C.S.S.B. 2658) (WEST)
PUBLIC HEALTH--STATE FUNDED PROGRAMS--FRAUD
Approved by the Governor June 16, 2009.
An act relating to fraud and abuse in state-funded programs; designating Miami-Dade County as a health care fraud area of special concern for certain purposes; amending s. 68.086, F.S.; authorizing rather than requiring a court to award attorney's fees and expenses to a prevailing defendant in an action brought under the Florida False Claims Act under certain circumstances; providing applicability; creating s. 408.8065, F.S.; providing additional licensure requirements for home health agencies, home medical equipment providers, and health care clinics; requiring the posting of a surety bond in a specified minimum amount under certain circumstances; imposing criminal penalties against a person who knowingly submits misleading information to the Agency for Health Care Administration in connection with applications for certain licenses; amending s. 400.471, F.S.; providing limitations on the licensure of home health agencies in certain counties. . .

Health Insurance: GA. UROLOGY CENTER SAYS INSURER UNDERPAYS OUT-OF-NETWORK CLAIMS, Urology Ctr. of Ga. v. Blue Cross Blue Shield, 19 No. 38 Andrews Ins. Coverage Litig. Rep. 7, Andrews Insurance Coverage Litigation Reporter June 26, 2009
A urology center in Georgia has filed a class-action lawsuit accusing Blue Cross Blue Shield of discouraging visits to out-of-network providers by reimbursing for these procedures at a "tiny fraction" of usual and customary charges. The suit alleges Blue Cross Blue Shield of Georgia is violating the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, by trying to prevent patients from exercising their right to visit out-of-network providers.

Health Insurance: BLUE SHIELD DENIES COVERAGE FOR MENTALLY ILL KIDS, SUIT SAYS, Daniel F. v. Blue Shield of Cal., 19 No. 38 Andrews Ins. Coverage Litig. Rep. 8, Andrews Insurance Coverage Litigation Reporter June 26, 2009
Blue Shield of California is facing a class-action lawsuit alleging it denies state-mandated coverage for seriously emotionally disturbed children and adolescents. The lead plaintiff, identified only as Daniel F. in the complaint, says the insurance company denied coverage for his adopted son's residential psychotherapy at the Island View Residential Treatment Center for Adolescents in Utah.

Medical Malpractice (Scientific Research): JUDGE EXCLUDES EXPERT ON MORTALITY RATES IN DUPONT HOSPITAL CASES, Svindland v. Nemours Found., 6 No. 7 Andrews Expert & Sci. Evidence Litig. Rep. 7, Andrews Expert and Scientific Evidence Litigation Reporter June 25, 2009
The judge presiding over two of the remaining eight lawsuits against the A.I. DuPont Hospital for Children and former chief cardiac surgeon William I. Norwood has excluded a plaintiff's expert who would have compared the death and complication rates of Norwood's surgeries to those of other pediatric heart surgeons. U.S. District Judge Mary A. McLaughlin also excluded all data from the Delaware Health Statistics Center and two nationally known children's hospitals.

Product Liability (Causation): PAIN-PUMP MAKER SEEKS JUDGMENT IN FLA. SUIT, Kilpatrick v. Breg Inc., 6 No. 7 Andrews Expert & Sci. Evidence Litig. Rep. 10, Andrews Expert and Scientific Evidence Litigation Reporter June 25, 2009
Medical device maker Breg Inc. has moved for summary judgment in a Florida man's liability suit over harm allegedly caused by its Pain Care 3000 pain pump, saying the plaintiff lacks the needed causal evidence. With a trial slated for July 6 in the U.S. District Court for the Southern District of Florida, Breg argues that Douglas Kilpatrick's suit must be dismissed because the evidence he has offered fails to show both general and specific causation as required by state law.

Bad Faith: INSURER'S BAD FAITH DID NOT HARM INSURED, WASH. COURT SAYS, Ledcor Indus. v. Mut. of Enumclaw Ins. Co., 19 No. 38 Andrews Ins. Coverage Litig. Rep. 9, Andrews Insurance Coverage Litigation Reporter June 26, 2009
A state appeals panel in Seattle has upheld a trial court's refusal to award damages for an insurer's bad faith in failing to promptly accept a general contractor's tender of defense as an additional insured on a subcontractor's policy. The general contractor was not entitled to bad-faith damages because it ultimately received what it was due under the contract and suffered no harm from the insurer's bad faith, Washington's Division 1 Court of Appeals said.

Disability: EMPLOYER'S FAILURE TO FOLLOW PLAN MEANS $213K REINSTATEMENT AWARD, Pannebecker v. Liberty Life Assurance Co., 19 No. 38 Andrews Ins. Coverage Litig. Rep. 4, Andrews Insurance Coverage Litigation Reporter June 26, 2009
An Arizona woman deserves reinstatement of her $213,000 benefits award because her insurer failed to properly apply the terms of a long-term- disability plan when deciding to cut off her monthly payments, according to a federal judge. U.S. District Judge James Teilborg of the District of Arizona said he agreed that Nancy Pannebecker was no longer totally "disabled" under the terms of the plan but that the insurer was required to specify the sedentary positions Pannebecker could perform.

Disability: INSURER FAILED TO REVIEW DISABLED WOMAN'S DENIAL OF BENEFITS, Roach v. Kaiser Permanente Long Term Disability Plan, 19 No. 38 Andrews Ins. Coverage Litig. Rep. 5, Andrews Insurance Coverage Litigation Reporter June 26, 2009
A California insurer improperly ruled that a plan member was not eligible for long-term disability benefits as it failed to comply with the terms of the plan, which required it to review her appeal, a Los Angeles federal judge has ruled. Plaintiff Patricia Roach went out on disability in September 2004 from her job as a project manager/ambulatory care registered nurse manager after developing chest pains, back spasms, uncontrolled high blood pressure and other physical symptoms.

Failure to Settle: GEORGIA CLARIFIES 'BAD-FAITH FAILURE TO SETTLE' CIRCUMSTANCES, Trinity Outdoor v. Cent. Mut. Ins. Co., 19 No. 38 Andrews Ins. Coverage Litig. Rep. 6, Andrews Insurance Coverage Litigation Reporter June 26, 2009
A policyholder cannot sue an insurer for bad-faith failure to settle a lawsuit unless the insurer's decision not to settle results in a judgment or settlement in excess of the policy limits, the Georgia Supreme Court has ruled. The U.S. District Court for the Northern District of Georgia certified the question to the state high court along with a follow-up question: If a judgment in excess of the policy limits is not required, what must a plaintiff show to prove negligent or bad-faith failure to settle.


Administrative law -- Birth-Related Neurological Injury Compensation Association -- Settlement -- Clarification -- Division of Administrative Hearings did not have jurisdiction to enter orders purportedly clarifying 1995 and 1999 final orders which approved stipulations settling parents' claims for NICA benefits -- Moreover, appealed orders did not appear to clarify anything about 1995 and 1999 final orders -- Attorney's fees -- Remand for reconsideration of order denying parents' motions for fees and costs -- Expenses incurred by parents in defending against NICA's untimely efforts to seek clarification of 1995 and 1999 final orders were incurred in connection with the filing of their claims for benefits and, accordingly, on remand administrative law judge should award parents their reasonable expenses incurred in this matter pursuant to section 766.31(1)(c) -- Where ALJ struck parents' section 57.105 motions for attorney's fees on basis that they were prematurely filed, and parents claim that they did not file motions with Division of Administrative Hearings, that they have in their possession the original motions, that they provided copies of the motions to NICA and others, and that it appears that someone else filed copies of the motions with DOAH, on remand, to extent parents continue to seek fees and costs under section 57.105, evidentiary hearing may be required to determine whether parents complied with procedural requirements of statute -- In light of appellate court's reversal of clarification orders, whether parents are entitled to fees and costs under section 120.569(2)(e) to be reconsidered on remand, should parents still seek fees and costs under that statute, where motions were denied on basis that ALJ had granted NICA's motions for clarification
Reported at 34 Fla. L. Weekly D1275a

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