Appellate attorney notes complaint limits backed by Third District Court of Appeals

"Attorney Dorothy Easley said a recent Third District Court of Appeals decision recognized that courts cannot go outside the allegations of a complaint.  'The first is that courts cannot go outside the allegations in a complaint. Here the trial court went outside the complaint and looked at other matters before discovery had even been allowed,” Easley told the Northern California Record of the recent ruling regarding her client Luz Mery Salcedo. “That is clear legal error. The Third District recognized that.' "  More.

Authored by Angela Underwood | Jul. 21, 2017, 1:37pm, the NorthernCaliforniaRecord

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Dissolution of marriage, writ of mandamus, and lamb roasted on a bed of rosemary and mint-infused olive oil, with heirloom tomatoes

Attorney's fees -- Costs -- Trial court properly awarded attorney's fees to city for successfully defending an action under Bert J. Harris Private Property Rights Protection Act -- Trial court erred by denying award of costs to prevailing city in inverse condemnation action in which court found that no taking had occurred -- A prevailing governmental entity in an inverse condemnation action is entitled to recover costs

CARIBBEAN CONDOMINIUM, ETC., ET AL., Appellants/Cross-Appellees, v. THE CITY OF FLAGLER BEACH, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Appeals -- Appeal from final summary judgment on breach of contract claim was untimely where notice of appeal was not filed within 30 days of rendition, and circuit court docket does not reflect that any motions for rehearing had been filed -- Attorney's fees -- Appeal of order awarding attorney's fees was timely -- Error to award attorney's fees under section 57.105 without setting forth basis for finding of entitlement and facts supporting amount awarded

MARK JACKSON, Appellant, v. MICHELLE JACKSON, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Error to include in equitable distribution one of husband's pensions, which parties dissipated during pendency of action -- Error to divide furniture and furnishings where parties had stipulated that such property would not be equitably divided -- Error to fail to value or divide husband's second pension

DENISE M. TERRY, Appellant, v. DOUGLAS J. TERRY, Appellee. 4th District.

Guardianship -- Attorney's fees -- Amount -- Limitation -- Claims bill -- Appeal from refusal of guardianship court to authorize payment of attorney's fees in amount exceeding $100,000 limit placed on legal fees and costs by the legislature -- Question certified: After the enactment of section 768.28 and the adoption of Florida Senate Rule 4.81(6), is it constitutionally permissible for the Florida Legislature to limit the amount of attorneys' fees paid from a guardianship trust established by a legislative claims bill?

SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A.; MARK EDWARDS and MITZI DEE RODEN, as parents and natural guardians of AARON EDWARDS, a minor; WILLIAM S. FRATES, II, P.A.; EDNA L. CARUSO, P.A.; VAKA LAW GROUP, P.L.; and GROSSMAN & ROTH, P.A., Appellants, v. STATE OF FLORIDA, Appellee. 4th District.

Insurance -- Automobile liability -- Uninsured motorist -- Excess coverage -- Priority of coverage -- Accident involving permissive driver of car owned by another, following which owner's liability insurer tendered its $100,000 policy limits to injured party and injured party sought coverage from its UM carrier after injured party had unsuccessfully sought payment from owner's excess liability carrier, which required that owner maintain underlying limits of $250,000 per person -- Trial court erred in granting summary judgment in favor of UM carrier on its third-party claim against excess carrier where UM carrier asserted throughout litigation that excess carrier's umbrella policy came first after owner's liability policy, and that UM policy was last in priority, but trial court actually held that UM carrier was responsible for $150,000 gap between limit of owner's automobile liability policy and the $250,000 threshold at which excess coverage was triggered -- UM carrier could not claim victory on ground that it requested a generic priority of coverage determination and received what it requested where the priority determination was, in fact, the opposite of what UM carrier sought

ALLSTATE INSURANCE COMPANY, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION a/k/a USAA, MELANIE MANZO-PIANELLI and ALANA PROCTOR, Appellees. 4th District.

Insurance -- Homeowners -- Attorney's fees -- Award to insureds who prevailed in action against insurer which had denied request for appraisal -- Trial court did not abuse discretion in finding that $400 was a reasonable blended hourly rate for various attorneys who were involved in case -- 200 hours was an excessive number of hours billed, and trial court abused discretion in finding that 200 hours was reasonable -- Trial court abused discretion in awarding a multiplier where there was no showing that insureds had difficulty in obtaining competent counsel, the result obtained was not remarkable, and there were no novel or difficult factual or legal issues in case

STATE FARM FLORIDA INSURANCE COMPANY, Appellant, vs. JOSE ALVAREZ AND MARTHA ALVAREZ, Appellees. 3rd District.

Insurance -- Uninsured motorist -- Torts -- Automobile accident -- Damages -- Noneconomic -- Past and future pain and suffering -- Remittitur -- Trial court abused its discretion when it reduced jury awards for past and future pain and suffering against UM insurer by nearly $1 million without explaining what in the record demonstrated the need for remittitur and the reason for the amount chosen -- Comparison of pain and suffering awards in other cases does not show basis for affirming trial court in instant case -- Remand for entry of order which contains necessary findings and conclusions to support remittitur

JEFFREY P. ARNOLD and TINA ARNOLD, Appellants, v. SECURITY NATIONAL INSURANCE COMPANY, Appellee. 4th District.

Licensing -- Driver's license suspension -- Refusal to submit to breath test -- Circuit court, in its appellate capacity, applied wrong law and improperly substituted its judgment for that of hearing officer when it reweighed evidence before hearing officer and reversed suspension of driver's license on basis that licensee's refusal to take breath test was not voluntary

STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY, etc., Petitioner, vs. JOSEPH S. BAIRD, Respondent. 3rd District.

Mandamus -- Denial -- Appeals -- Belated -- Appellate court has no authority to grant belated appeal in civil proceeding or to grant belated certiorari review

WILSON PEREZ, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent. 1st District.

Torts -- Discovery -- Work product privilege -- Trial court improperly entered order compelling defendant to disclose to plaintiff post-accident photographs of area where plaintiff was injured where plaintiff failed to exercise due diligence to obtain substantially equivalent materials to the privileged photographs

SEABOARD MARINE LTD., Petitioner, vs. FARCONELLY CLARK, Repondent. 3rd District.

Torts -- Hospitals -- Medical malpractice -- Action arising out of incident in which nurse allegedly quickly and forcefully removed post-operative drainage tube from patient, unknowingly leaving section of drainage tube inside patient -- Jury instructions -- No error in refusing to give requested instruction on presumption of negligence arising from discovery of presence of foreign body -- Instruction was not appropriate where plaintiffs were able to present direct evidence of negligence -- At time of alleged negligence, patient was medicated, but was not unconscious, and patient's wife was in hospital room, and there were no genuine doubts surrounding identity of the allegedly culpable party or the events that led to tube being left inside patient by time case went to trial -- Foreign body instruction was not necessary to allow jury to resolve issues in case or supported by facts of case -- Whether foreign body instruction may have been properly applied to claim that nurse negligently failed to inspect tubing, although not applicable to claim of negligent removal, not considered by appellate court where parties did not submit proposed instructions differentiating claims despite trial court's request

SIMON DOCKSWELL and SANDRA DOCKSWELL, Appellants, v. BETHESDA MEMORIAL HOSPITAL, INC., a Florida corporation, Appellee. 4th District.

Torts -- Product liability -- Statute of repose -- Action by plaintiff who was injured when the filter of his swimming pool exploded, against the manufacturer of the filter, the installer of the pool and intermediate distributor of the filter, and the party who acted as the certified pool contractor -- Action was barred by twelve-year statute of repose -- Pool filter, a component part of the swimming pool, did not constitute an improvement to real property, and was not excepted from statute of repose

RYAN AND JESSICA DOMINGUEZ, Appellants, vs. HAYWARD INDUSTRIES, INC., CERTIFIED GUNITE COMPANY D/B/A CUSTOM POOLS, AND JOHN M. PIEKLO, Appellees. 3rd District.




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Insurance, commercial-residential property, right to indemnity, and oregano-provolone-wild boar fajitas

Insurance -- Automobile liability -- Duty to defend -- Action by one insurer against another insurer alleging that defendant breached its duty to defend plaintiff's insureds in a personal injury action, and seeking indemnification for attorney's fees and costs expended in defending its insureds -- Anti-subrogation rule -- Trial court did not err in granting summary judgment in favor of plaintiff insurer on claim that defendant breached its duty to defend plaintiff's insureds in personal injury action against plaintiff's insureds and defendant's insured, who contracted with plaintiff's insureds for provision of trucking services and who, as part of the subcontract, agreed to maintain policy of automobile liability insurance which would be primary and further agreed to defend, indemnify, and hold plaintiff's insureds harmless for claims, damages, and losses arising out of negligent acts or omissions -- Anti-subrogation rule did not apply where there was a specific and contractual obligation of indemnification in favor of plaintiff's insureds that shifted exposure from plaintiff, leaving defendant with the primary obligation to defend actions arising out of its insured's negligence

PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, AS RECEIVER FOR AEQUICAP INSURANCE COMPANY, PATCO TRANSPORT, INC. AND TAMPA BAY TRUCKING, INC., Appellees. 4th District.

Insurance -- Claim against insurance company for damage to insured home caused by burglary -- Trial court erred in dismissing complaint for failure of plaintiff to file a petition in probate to determine her own capacity -- Appellate attorney's fees -- Persistence of insurer and its counsel in arguing that insured was required to seek a guardian for herself as condition of continuing action was frivolous where insured had executed a durable power of attorney in favor of her son -- Insurer and its counsel should be equally responsible for insured's attorney's fees in prosecuting appeal

MAXIMILIANA ALBELO, Appellant, v. SOUTHERN OAK INSURANCE COMPANY, Appellee. 3rd District.

Insurance -- Commercial-residential property insurance -- Notice of loss -- Trial court properly entered summary judgment finding that insured condominium association which gave notice to insurer five years after hurricane that property had sustained damage in hurricane failed to give timely notice of loss -- When an insurance contract contains a provision requiring prompt notice of loss, insured must give notice of loss that implicates a potential claim without waiting for the full extent of damages to become apparent -- Trial court erred in entering summary judgment finding that insurer was prejudiced by late notice, as issue of prejudice is question of fact for jury

1500 CORAL TOWERS CONDOMINIUM ASSOCIATION, INC., Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District.

Nat'l Union Fire Ins. Co. of Pittsburgh v. Am. Motorists Ins. Co.   7th Circuit Court of Appeals

Docket: 11-2500         Opinion Date: February 13, 2013

Judge: Posner

Areas of Law: Contracts, Injury Law, Insurance Law         

 The Hancock Center in Chicago is managed by Shorenstein (several related companies). Shorenstein hired an architectural firm, MCA, to design and oversee renovation of windows and exterior walls; MCA hired a general contractor. In 2002, a scaffold fell from the 42nd floor in a high wind and killed three people in cars, severely injuring several others. Shorenstein settled with plaintiffs in 2006 for a total of $8.7 million. MCA’s contract with Shorenstein had required MCA to obtain liability insurance covering the owner, Shorenstein, and any other party specified by the owner. MCA obtained the required insurance policy from AMICO, covering “any person or organization to whom [MCA is] obligated by virtue of a written contract.” There was a dispute concerning which Shorenstein entities were covered. Shorenstein was awarded $959,866.02 by the district court. The Seventh Circuit affirmed in part and reversed in part, holding that the court erred in apportioning the award among the Shorenstein entities. The court rejected AMICO’s arguments that the claim was barred by an exclusion of coverage for injuries “due to rendering or failure to render any professional service” by an insured and that Shorenstein gave up its right to indemnity by AMICO by asking its other insurer for indemnification.

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