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It is common for a relative of a nursing home resident to complete the paperwork during the resident’s admission. In a recent case, the Second file000356994816District agreed with the Fifth District that the resident is not bound by an arbitration agreement signed by a relative as financial guarantor.

In this case, the resident had lived in the nursing home for 10 months before his death. His estate sued the nursing home for negligence. The nursing home moved to compel arbitration based on language in the resident admission and financial agreement. The trial court originally ordered arbitration but subsequently rescinded that order.

The district court found that the trial court probably based its decision on Perry v. Sovereign Healthcare of Metro W. In Perry, the Fifth District found that the resident’s daughter signed as responsible party and financial guarantor but did not sign on behalf of her father. With no one signing on her behalf, the resident was not bound by the agreement. Furthermore, there was no evidence that the resident was incompetent and no evidence that the daughter had the authority to bind her mother to an arbitration agreement.

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After suit is filed, either party may serve a proposal for settlement on the adverse party. If a plaintiff makes a demand for judgment, the plaintiff may be entitled to recover reasonable fees and costs if the judgment is at least 25% greater than the proposal. Section 768.79, Florida Statutes. The conditions and nonmonetary terms of the demand must be stated with particularity, as required by Florida Rule of Civil Procedure file0004955877441.442. Although the procedural requirements are set out in the rule, the procedure can get complicated when there are multiple parties involved on both sides. The Fifth District recently decided a case involving demands for judgment where there were two plaintiffs and multiple defendants.

Anderson v. Hilton Hotels Corporation arose after a man was attacked in a hotel parking lot. The man and his wife filed suit against the hotel chain, the franchise owner and operator, the management company, and the security company, alleging negligence against each of them.

The plaintiff served separate demands for judgment on each defendant. The demands were identical except for the amount. The wife and her claim for loss of consortium were ultimately dropped before the case went to trial, so only the injured man’s own claims were heard by the jury. The parties agreed to collectively refer to the hotel chain, the franchise owner, and the management company as “Embassy Suites” in the jury instructions and verdict forms. The jury placed 28% fault on the security company and the rest of the fault on the “Embassy Suites” defendants. Judgment was entered against those defendants in excess of $1.2 million.

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It is an unfortunate reality that people who injure others through negligence often do not have sufficient assets to compensate their victims out of their own pockets. Victims instead must often rely on insurance to compensate them. Insurers, of course, like to limit their own liability, particularly when there is an aspect of intentional conduct on the part of an insured that led to the injury. Insurance policies therefore contain a variety of exclusions of coverage. Generally, an exclusion will be valid if it is clear and unambiguous.

SONY DSCHomeowner’s and renter’s policies often provide general personal liability coverage for the insured. They may cover, for example, dog bite injuries, falls, and even incidents that occur off the insured property. There are, however, a number of common exclusions, including injuries arising from automobile accidents, intentional acts of the insured, or acts of war. Homeowner’s policies may also exclude coverage for injuries arising from sexual assault or molestation.

The Fifth District recently considered an exclusion for injuries arising from sexual molestation when the act was allegedly committed by the minor child of the insured and the claim was one of negligent supervision. In Dueno v. Modern USA Insurance Company, an aunt filed suit as next friend of her nephew, alleging that the child was sexually battered by the defendants’ son while in the care of the defendants. The defendants’ homeowners’ insurance company filed a declaratory judgment action, seeking a declaration that the policy did not cover the insureds for negligent supervision of their son.

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It is often assumed that a personal injury plaintiff is entitled to recover the cost of initial medical evaluations obtained shortly after the incident in question. Is a plaintiff always entitled to recover the expense of medical evaluations that occur almost immediately after the accident? Not necessarily.

The Fifth District recently released an opinion addressing whether a plaintiff was entitled to recover the expense of initial medical evaluations 547342_65606132when the jury found that the defendant was not the legal cause of her alleged injuries. In Schwartz v. Wal-Mart Stores, Inc., the plaintiff alleged she was injured after being struck in the back by an ornamental pumpkin. The store admitted to negligence on the part of its employees but denied causation and damages. The court did not state how the pumpkin came to hit the plaintiff but described it as weighing 8.4 ounces and being “squishy.”

The case went to trial. The jury found that the defendant was not the legal cause of the claimed injury. The plaintiff moved for a new trial, and the court granted the motion to allow a new trial only on the issue of damages for the initial medical evaluation. The plaintiff appealed based on the limitation. The defendant also appealed, arguing that the trial court erred in granting a new trial based on the evidence presented at trial.

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The Florida Wrongful Death Act, § 768.21, Florida Statutes sets forth the damages that can be recovered when a MINOLTA DIGITAL CAMERAtortfeasor causes a death.  Pursuant to the Act, the decedent’s “survivors,” which include the decedent’s spouse, children, and parents, may be able to recover.  Survivors may also include any blood relatives or adoptive siblings that are partly or entirely dependent on the decedent.  Survivors are entitled to recover the value of past and future lost support and services.  The decedent’s spouse and minor children may recover for loss of companionship and pain and suffering.  When there is no surviving spouse, adult children have the right to recover for these losses.  Parents may recover mental pain and suffering for the loss of a minor child or for an adult child who had no other survivors.

The jury will generally allocate the recovery.  In a recent probate case, however, a father filed a petition for declaratory judgment in the probate of his daughter’s estate, claiming he was entitled to more of the jury award than the mother.  The mother had filed a wrongful death suit, as personal representative of her daughter’s estate.  The jury awarded $1 million to the mother, $100,000 to the father, and nothing to the estate.  The father filed the petition in the probate court, claiming he and the mother had agreed upon how to share any award in the case.

According to the father, he and the mother had agreed to share the award 60/40.  The father pursued relief under § 733.815, Florida Statutes, which allows for private agreements as to the distribution of an estate. The probate court granted summary judgment, finding it did not have jurisdiction to hear the case.

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Plaintiffs must identify the proper defendants before filing suit.  Although a plaintiff may be able to amend a complaint to add a new defendant, they should do so before the statute of limitations expires.  If they fail to do so, 544231_24730006the claim may be barred.

The First District recently considered whether an amended complaint naming the wife of the original defendant will relate back to the date of the original complaint.  In Russ v. Williams, the plaintiff was injured in an automobile accident with another vehicle. She filed suit against a man alleging he owned and operated the vehicle at the time of the crash.  The male defendant filed an answer that denied the allegations and raised some affirmative defenses.  Shortly after the statute of limitations passed, the male defendant moved for summary judgment.  He had affidavits that showed his wife was the sole owner of the vehicle and that she was the driver when the accident occurred.

The plaintiff then moved for leave to amend her complaint to substitute the wife for the husband as defendant.  In her motion, the plaintiff referred to the error as a “mistake or misnomer in identifying the party defendant.”  The defendant opposed the motion, arguing his wife would be a new party to the suit and therefore the statute of limitations barred any claim against her.  The plaintiff argued that the amended complaint would relate back.  The trial court allowed the plaintiff to amend the complaint.

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The existence of insurance coverage can sometimes determine whether an injury victim will ever be able to collect compensation for his or her injury.  In a per curiam, unpublished opinion, the 11th Circuit recently reviewed a Georgia district court’s interpretation of a homeowner insurance policy.  In the tragic case of Moon v. Cincinnati Ins. Co., a young child drowned while in the care of her babysitter at the babysitter’s 1243620_24337017home.  The babysitter did not own the home, but instead rented it with her husband from her husband’s father.

The child’s parents and estate sued the babysitter and her husband, ultimately receiving a judgment of more than $10 million. The homeowner, the babysitter’s father-in-law, had an insurance policy on the property that included coverage to anyone acting as his “real estate manager.”  The insurer initially defended the babysitter and her husband under a reservation of rights, but later denied coverage and stopped its defense, claiming the policy did not cover them.

The babysitter and her husband filed suit alleging breach of contract and bad faith.  Both parties moved for summary judgment.  The plaintiffs argued that they were covered as “real estate managers” under the policy.

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An important element of most personal injury claims is proximate cause.  A plaintiff must show that the defendant’s act or omission proximately caused the injury.  The Third District recently decided a failure to warn case on the issue of proximate cause.  In Trek Bicycle Corporation v. Miguelez, a man was injured while riding a new road bike.  The bike stopped suddenly, causing the man to fall.  After the accident, it was 823923_61365466discovered that something had been caught in the front wheel spokes.  That object also hit the front carbon fiber forks, which kept the wheel from rotating and cracked the forks.  When the forks cracked, the bicycle collapsed.

The man sued both the manufacturer and retailer who sold him the bike.  He claimed defective design, defective manufacture, and failure to warn.  The court entered directed verdicts in favor of the manufacturer on the defective design and defective manufacture claims, but allowed the failure to warn claim to go to the jury.  The jury awarded $800,000 to the plaintiff from the manufacturer.

The plaintiff claimed he would not have purchased a bike with carbon fiber forks if it had a warning stating that carbon fiber can suddenly fail and conceal damage from an impact, including instructing the rider to stop riding and take the bike to a dealer if it is impacted or crashed.  The defendant testified that this warning was on the bike, while the plaintiff testified it had not been on the bike when he bought it.

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In Millard Mall Services, Inc. v. Bolda, the plaintiff filed suit against a mall after allegedly slipping and falling while shopping.  During the litigation, the plaintiff attempted to subpoena a number of records from the mall, including all incident reports of similar incidents for the three years preceding the date of the plaintiff’s fall, documentation of maintenance or cleaning of the mall during the month of the plaintiff’s fall, and all documentation of the maintenance or cleaning of the mall by any outside person or corporation during the year.  OLYMPUS DIGITAL CAMERA

The defendants objected.  They filed affidavits stating that the documents, which included their Quarterly Safety Committee reports, contained discussions about the incidents and mental impressions of the incidents.  The court reviewed the documents in camera and ordered the defendants to produce the Quarterly Safety Committee Reports but sustained the defendant’s objection as to the incident report of the plaintiff’s fall.  The defendants requested certiorari review of the trial court’s order, arguing that the quarterly reports were protected by the work product privilege.

Ordinarily, materials prepared in anticipation of litigation are protected by the work product privilege.  The Florida Rules of Civil Procedure do allow for a party to obtain the work product of the opposing party if the requesting party can show that he or she has a need for those materials and could not obtain their equivalent without undue hardship.

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Claims against one’s own employer generally fall under workers’ compensation laws.  Some claims, however, arise outside the scope and course of employment and are not covered by workers’ compensation laws.  An employee can, therefore, sometimes bring a tort claim against his or her employer.

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The Third District recently decided a case in which an employer attempted to enforce an arbitration agreement in its employment agreement with the plaintiff.  In Club Mediterranee, S.A. v. Fitzpatrick, the plaintiff was employed by the defendant resort in the Bahamas.  The employer provided a dormitory room at the resort for the plaintiff.  She was attacked by an unknown assailant in that room.

She filed suit against the resort for the damages resulting from the assault.  The defendant moved to compel arbitration, based on language in the employment agreement.  The employment agreement required the plaintiff to pursue “any claim or controversy arising out of [her] employment” through the internal chain of command.  If the matter was not resolved internally, the agreement required her to arbitrate the claim in Miami.  The trial court denied the motion to compel arbitration, and the defendant appealed to the Third District.  The central issue in this case was whether the claim arose out of the plaintiff’s employment.

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