Insurance and torts, tobacco, procedural due process over angel hair pasta, tossed with fresh basil and roasted garlic

Insurance -- Commercial -- Breach of contract -- Bad faith -- Appeal of non-final order denying insurer's motion to dismiss breach of contract and bad faith claim, leaving claims to be tried simultaneously -- Trial court's order is reversed because insurer should not be required to defend against bad faith claim until insured has prevailed on merits -- Trial court can decide either to dismiss bad faith claim without prejudice or abate the claim until underlying breach of contract issue is resolved

LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. STUDIO IMPORTS, LTD., INC., Appellee. 4th District.

Insurance -- Commercial general liability -- Duty to defend -- Error to enter summary judgment based on finding that insurer had no duty to defend insured in personal injury action that fell within automobile exclusion of commercial general liability policy where complaint alleged facts that fairly brought suit outside automobile exclusion

CATEGORY 5 MANAGEMENT GROUP, LLC, Appellant, v. COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 1st District.

Medical -- Appeals -- Harmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment -- Question certified -- To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict -- Court recedes from line of cases which applied a strict, outcome-determinative “but-for” test for harmless error -- Wrongful death -- Action alleging anesthesiologist and hospital were negligent in administering anesthesia, in monitoring decedent's system during cesarean delivery and controlling her fluids during surgery, and in responding to decedent's cardiopulmonary arrests -- Cross-examination -- Limitation -- Trial court abused its discretion in precluding plaintiff from cross-examining defense expert, who maintained that death resulted from amniotic fluid embolus and testified regarding range of probability of AFE occurring, regarding credibility of another witness, whose testimony seemingly indicated a disproportionately high diagnosis of AFE cases at defendant hospital -- Error was harmless where it is more likely than not that the restriction on the cross-examination did not contribute to the verdict

FRANK SPECIAL, as Personal Representative of the Estate of Susan Special, Appellant, v. IVO BAUX, M.D., IVO BAUX, M.D., P.A. PINNACLE ANESTHESIA, P.L.; and WEST BOCA MEDICAL CENTER, INC., Appellees. 4th District.

Torts -- Trusts -- Breach of fiduciary duty -- Amended final judgment awarding plaintiff an equitable lien on certain real property on plaintiff's breach of fiduciary duty claim against defendant individually and as trustee of revocable living trust was apparently based on erroneous impression that trial court could not transfer title of property to plaintiff -- Remand for reconsideration of appropriate remedy

REBEKAH PARIZ, Appellant/Cross-Appellee, vs. HELEN M. COLON, INDIVIDUALLY, AND AS TRUSTEE OF THE HELEN M. COLON REVOCABLE LIVING TRUST AND HELEN M. COLON REVOCABLE LIVING TRUST, Appellee/Cross-Appellant. 3rd District.

Torts -- Product liability -- Tobacco -- Individual action by Engle class member -- Appeals -- Certiorari -- Petition for certiorari review of orders denying plaintiff's motion to amend a complaint filed by her and her deceased husband in order to state an action for wrongful death and plaintiff's motion to substitute herself, as personal representative of husband's estate, as the plaintiff -- Denial of motion to amend is not reviewable by certiorari where order of dismissal could be entered and plaintiff could then seek review by plenary appeal -- Petition dismissed for lack of jurisdiction -- Concern expressed over basis for circuit court's ruling, which relied upon district court opinion holding that when a personal injury plaintiff's death is the result of the personal injuries, an amendment to the personal injury complaint should not be permitted and a new, separate lawsuit for wrongful death must be filed, as new lawsuits could be barred as untimely under Engle even though original personal injury lawsuits were timely filed

CHARLEEN SKYRME, Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS USA, INC.; LORILLARD TOBACCO COMPANY; LORILLARD, INC.; LIGGETT GROUP, LLC (f/k/a Liggett Group, Inc., Liggett & Myers Tobacco Company); and VECTOR GROUP, LTD., INC. (f/k/a Brooke Group, Ltd.), Respondents. 2nd District.

Torts -- Civil procedure -- Relief from judgment -- Procedural due process -- No abuse of discretion in denying plaintiffs' motion for relief from summary judgment entered in favor of retailer in action alleging malicious prosecution and other claims arising out of arrest and prosecution of plaintiff for retail theft -- Plaintiffs were afforded both proper notice and a meaningful opportunity to be heard where it was undisputed that they were served with notice of summary judgment hearing approximately three months before hearing took place and raised no objections to either the scheduled date or duration of hearing in interim between receipt of notice and hearing; hearing was conducted in fair manner appropriate to nature of proceeding; and summary judgment was granted only after plaintiffs conceded the issue of probable cause

OSANNA S. CARMONA and NELSON L. CARMONA, Appellants, v. WAL-MART STORES, EAST, LP, Appellee. 2nd District.

Torts -- Automobile accident -- Rear-end collision -- Evidence -- Damages -- Claim that trial court, in granting plaintiff's motion in limine, improperly precluded defendants from presenting testimony that the amount of damages plaintiff was claiming was not reasonable or necessary for the injuries at issue was not preserved for appeal where no transcript of hearing on motion in limine was in the record and neither record nor brief revealed what specific testimony was excluded as a result of the motion in limine -- Trial court did not err in denying motion for directed verdict as to charges that plaintiff's physician violated section 456.052 by self-referring plaintiff for MRIs to a facility that the physician himself owned without making required disclosure, as it was unclear whether statute was, in fact, violated -- Argument -- Trial court did not abuse its discretion in denying defendant's motion for new trial based on cumulative effect of allegedly improper remarks made by plaintiff's counsel during closing argument where defendants failed to show that remarks were incurable, remarks were not as pervasive as defendants suggest, many of the remarks were fair reply to arguments made by defendants, and public's interest in system of justice was not impaired

AARMADA PROTECTION SYSTEMS 2000, INC. and JEFFREY STEVEN DUBLE, JR., Appellants, v. LANCE YANDELL and MAUREEN YANDELL, Appellees. 4th District.

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New flavors of the week

Rules of Civil Procedure -- Amendments -- General Rules of Pleading -- Verification of mortgage foreclosure complaints involving residential real property -- Forms -- Affidavit of diligent search and inquiry -- Final judgment of foreclosure -- Motion to cancel and reschedule foreclosure sale
Reported at 35 Fla. L. Weekly S97b

Civil procedure -- Relief from judgment -- Insurance -- Where plaintiff's complaint alleged that bouncers at defendant's bar and club assaulted and battered him, defendant's liability insurer denied coverage on basis that complaint alleged an intentional tort, and trial court confirmed arbitration award which found that defendant was negligent and entered final judgment on the award, it was error to grant plaintiff's motion to vacate final judgment which asserted that due to inadvertence or error, the arbitration award should not have been entered because the liability insurance company should be made a party to the claim -- Although rule 1.540 authorizes trial court to vacate final judgment on basis of negligent mistake or error, rule is not intended to provide relief for judgmental mistakes or tactical errors of counsel
Reported at 35 Fla. L. Weekly D342a

Contracts -- Home construction -- Retention of purchase deposit after buyer cancelled due to delay that was neither party's fault -- Consumer law -- Section 501.1375, which requires a building contractor or developer to hold certain deposits of a prospective buyer of a one- or two-family residential dwelling unit in an escrow account unless the buyer waives the escrow requirements in writing, does not apply to general contractor who contracts to build single-family residence upon land owned by the consumer at the time the contract was signed
Reported at 35 Fla. L. Weekly D331a

Contracts -- Real property sale -- Specific performance -- Where purchasers brought action for specific performance of initial contract for sale of property, and court found that initial contract was superceded by subsequent contract in a novation, it was error for court to sua sponte amend pleadings to substitute later contract for contract specified in pleadings and to grant specific performance on the later contract without providing defendant opportunity to respond to the complaint as amended
Reported at 35 Fla. L. Weekly D320a

Contracts -- Real property sale -- Rescission of contract -- Violation of Interstate Land Sales Full Disclosure Act by failing to deliver copy of property report to purchaser before she signed purchase contract -- Exemptions -- Developer of residential community was exempted from ILSA's disclosure requirements because language in purchase and sale contract extending construction completion period for delays caused by specified events or “any other similar causes not within Seller's control” did not render developer's obligation to complete construction of residence within two years illusory
Reported at 35 Fla. L. Weekly D337c

Criminal law -- Conspiracy to commit home invasion robbery -- Jury instructions -- Uncharged act -- Where defendant was charged with conspiring with a named individual to commit crime of home invasion robbery, it was error to instruct jury that it could find defendant guilty if he conspired with the named individual “and/or another black male” -- It is fundamental error to instruct the jury that defendant may be convicted for uncharged acts
Reported at 35 Fla. L. Weekly D339b

Criminal law -- First degree murder -- Kidnapping -- Burglary of dwelling -- Aggravated stalking -- Argument -- Claim that prosecutor impermissibly shifted to defendant the burden of proving essential element of crime by misstating that if jury believed beyond a reasonable doubt that the victim was not dead, they should acquit defendant was not preserved for review by contemporaneous objection, and misstatement did not constitute fundamental error -- Misstatement occurred only once and was not intentional, and jury was repeatedly told that state had burden of proving that victim was dead
Reported at 35 Fla. L. Weekly D355b

Criminal law -- Jurors -- Peremptory challenge -- Gender discrimination -- State's explanation that it had a bad feeling about juror was not a valid gender-neutral explanation for strike of last male on panel -- Trial court erred in upholding strike based upon fact that state had struck an equal number of male and female jurors -- It is improper for court to consider overall makeup of jurors that have been seated in determining sufficiency of gender-neutral reason for peremptory strike -- Issue was properly preserved for appeal -- When court reconsidered defendant's objection to strike, it was not necessary for defendant to renew his objection
Reported at 35 Fla. L. Weekly D321a

Criminal law -- Murder -- Jury -- Questions -- Trial judge abused his discretion by responding to jury's question about the availability of transcripts in the negative, without advising the jury about the potential for read backs of witnesses' testimony, ignoring the request of both the state and defense -- Conflict certified -- Trial judge's apparent adoption of an ad hoc rule prohibiting read backs amounted to a failure to exercise the discretion granted to trial judges in this area -- Error was not harmless -- Evidence -- Confession -- State presented sufficient evidence to establish corpus delicti independently of defendant's confession
Reported at 35 Fla. L. Weekly D328a

Dissolution of marriage -- Child support -- Error to include in husband's income, for purpose of calculating child support, anticipated annual financial gifts which husband's mother had historically made to minor children for their education
Reported at 35 Fla. L. Weekly D327a

Criminal law -- Murder -- Death penalty -- Post conviction relief -- Ineffectiveness of counsel -- No error in denying claim that trial counsel was ineffective for failing to object to several allegedly improper prosecutorial statements made during closing argument -- Prosecutor's comments were insufficient to undermine confidence in outcome as required under Strickland prejudice standard -- No error in denying relief on claim that post conviction judge erred by not allowing defendant's expert to testify to prevailing norms of effective representation in capital cases relevant to defendant's proceeding -- No merit to claim that counsel was deficient in failing to timely discover and introduce testimony of witness that allegedly would have testified that defendant confided to him that defendant had been sexually abused as child, and that this testimony would have refuted claim that defendant recently fabricated his claims of abuse -- No error in denying claim of ineffectiveness in failing to convey negative impact on possible mitigation which resulted from plea agreement retraction and for failing to seek enforcement of plea offer -- By failing to demonstrate that additional witnesses would have testified and what those witnesses would have said, failing to explain how that testimony would improve on testimony that was given in case, and failing to explain how additional testimony would interact with other evidence and circumstances of case, defendant failed to establish that he suffered prejudice from counsel's alleged deficiencies -- Ring v. Arizona claim is procedurally barred as it was raised and rejected on direct appeal, and even if claim were not barred, it is rejected
Reported at 35 Fla. L. Weekly S106a

Criminal law -- Murder -- Death penalty -- Identification -- No error in denying motion to suppress photographic and live lineup identifications because law enforcement did not offer assistance of counsel -- Because photographic and live lineups occurred before any charges were filed against defendant, they were not critical stages of proceedings and did not trigger right to counsel -- Counsel -- Trial court made sufficient inquiry into defendant's complaint that counsel had been given names of alibi witnesses but had never spoken with these witnesses -- Defense counsel adequately explained her investigator's discussions with the alibi witnesses and her decision not to pursue their use as witnesses -- No error occurred in allowing defense counsel to respond to this issue in camera, out of earshot of defendant and state -- Sentencing -- No error in instructing jury on avoid arrest aggravator where state presented competent substantial evidence to support the aggravator, notwithstanding fact that trial court ultimately declined to find this aggravating circumstance -- Death penalty was proportionate -- Evidence was sufficient to support convictions
Reported at 35 Fla. L. Weekly S108a

Dissolution of marriage -- Trial court erred in denying wife's motion to enforce parties' consent final judgment -- Property settlement agreement that has been incorporated into final judgment of dissolution is non-modifiable, regardless of either party's financial position -- Where final judgment did not contain a reservation of jurisdiction, trial court lacked authority to change terms of contract parties had agreed to and the court had adopted -- Emails exchanged between parties' attorneys did not form a novation where there was no evidence that parties intended to form a new contract -- Where final judgment of dissolution provides for the transfer of assets, it is the responsibility of the spouse in possession of those assets to effectuate the transfer
Reported at 35 Fla. L. Weekly D340a

Insurance -- Subrogation -- Rental dwelling policy -- Subrogation action against tenant by insurer which had paid insured landlord for fire damage to leased premises, alleging that tenant's negligence caused the fire -- Error to enter summary judgment for defendant tenant on ground that tenant was an implied co-insured under landlord's insurance policy and that insurer cannot seek subrogation against its own insured or co-insured -- In order to determine whether landlord's insurer may bring a subrogation action against a negligent tenant, the lease as a whole is to be examined in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant's negligence -- Insurer should be allowed to proceed with its subrogation action against tenant because parties did not in unequivocal terms in the lease intend to limit tenant's liability for negligent acts
Reported at 35 Fla. L. Weekly D352a

Mortgage foreclosure -- Relief from judgment -- Trial court did not abuse discretion in denying motion to vacate default judgment and relief from final judgment of foreclosure -- Process server's affidavit of diligent search was facially sufficient to uphold service of process by publication -- There was sufficient competent evidence to conclude that diligent search was conducted to locate an address for defendant who resided at an undisclosed location in the Bahamas -- Foreclosure sale to bona fide purchaser cannot be set aside
Reported at 35 Fla. L. Weekly D348a

Torts -- Parochial high school was not liable for injuries suffered by student in automobile accident that occurred while student was driving automobile after consuming alcohol at an end-of-year party at a private residence -- Party at which student consumed alcohol was not a school sponsored or school related event -- Neither school principal's visit to private residence during party nor school's handbook regarding such parties created a duty on part of school pursuant to undertaker's doctrine -- Trial court erroneously struck defendant's affirmative alcohol or drug defense on the ground that the defense was not applicable because the student's parents, not the student, were the plaintiffs -- Trial court abused discretion in excluding records and testimony relating to student's treatment for alcohol abuse -- Judgment for plaintiffs reversed
Reported at 35 Fla. L. Weekly D344a

Torts -- Workers' compensation immunity -- Where defendant denied plaintiff's workers' compensation claim on the basis that plaintiff's condition was not the result of an injury by accident arising out of and in the course and scope of employment, defendant was estopped from raising workers' compensation exclusivity defense in plaintiff's negligence action -- Because defendant asserted irreconcilable positions as to whether plaintiff's injury occurred in the course and scope of his employment, trial court properly ruled that defendant was not entitled to workers' compensation exclusivity defense as a matter of law
Reported at 35 Fla. L. Weekly D342b

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