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A person injured in an assault may, depending on the circumstances surrounding the assault, have a claim against the premises owner for negligent security. Such cases may include allegations that the premises owner failed to provide adequate lighting, security, or other measures that could have prevented the attack. The Fifth District recently considered whether a premises owner’s insurer is responsible for paying 9332_3175such a claim in Wilshire Insurance Company v. Poinciana Grocer, Inc.

In this case, a man who was employed by a garbage collection company was stabbed on the premises by a man leaving a convenience store. The injured man sued the premises owner for negligently failing to maintain the premises in a safe condition, failure to warn, and failure to prevent the assault with adequate security or safety.  The opinion does not provide detailed information regarding the allegations.

The policy in question has an exclusion related to assault and battery. The exclusion applies to claims arising from assault or battery and acts or omissions related to preventing or suppressing assault or battery. The exclusion further provides that the insurer is not responsible for defending the insured against such claims.

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Even when an insurer agrees to pay an accident victim, the insurer sometimes places unreasonable terms and conditions on that settlement. In a recent case, the Fourth District considered whether the parties had reached a binding settlement agreement before the suit was filed. The plaintiff’s son was killed as a passenger in a single-car accident. The plaintiff’s counsel sent a demand letter to the insurer containing a settlement offer. The terms of the offer as presented in the demand were that the insurer was to provide an affidavit of no additional insurance coverage, a certified copy of the policy, a check for the property damage in the specified amount, and a draft for the bodily injury policy limits.               748020_22613557

The insurer responded within the time frame requested in the demand. In the response, the insurer stated that it was a complete acceptance of the terms and conditions in the demand. The insurer provided the requested affidavit of no additional coverage, a certified copy of the policy, the property damage check, and the bodily injury settlement draft. The insurer also provided an affidavit from Christice Guillame attesting that she had no additional coverage and a release that would release all claims against Christice Guillaume and Patricia Guillaume. The acceptance was expressly conditioned upon the release, and the insurer requested that the executed release be returned before the funds were disbursed.

Unfortunately, the court does not clearly set the roles of the defendants or exactly which defendants were covered under the policy. The court did note, however, that Patricia Guillaume was both a non-insured under the policy and a non-party at the time the release was sent to the plaintiff’s counsel.

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This blog has previously discussed State Farm Mutual Ins. Co. v. Curran, in which the Florida Supreme Court found that submitting to a compulsory medical examination (“CME”) was not a condition precedent to coverage. In a recent case, the Fourth District considered whether submitting to an examination under oath (“EUO”) was a condition precedent to coverage.

In Solano v. State Farm Insurance Company, the trial court granted the defendant’s motion for summary judgment. The trial court held that 1409592_81898043the EUO was a condition precedent. The Fourth District, however, found that there remained disputed factual issues regarding the plaintiffs’ compliance with the policy, and summary judgment was inappropriate.

The case arose from property damage resulting from a hurricane. At the time they were asked to submit to the EUO, the plaintiffs had hired a public adjuster and submitted three proofs with increasing claims of damage. On the date of the EUO, they submitted a fourth proof of loss. Although the husband did go through with the EUO, he deferred many of his answers to the adjuster and others to his wife. He then refused to allow the EUO of his wife to proceed that day because he was concerned that it would put her under too much stress. The adjuster also refused to give a statement under oath. The wife’s EUO was subsequently scheduled, but five days before it was to occur, the plaintiffs filed suit to compel an appraisal. The plaintiff appeared for her EUO, but the defendant chose not to proceed in light of the pending litigation.

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The Second District recently addressed the issue of proper procedure for determining a setoff for Personal Injury Protection (“PIP”) benefits. In Moody v. Dorsett, the plaintiff was injured in an automobile accident. He received $5,484.96 in PIP benefits from his own carrier and filed suit against the other driver. The jury awarded him $11,237.86.

During trial, the defendant’s attorney raised the issue of a misunderstanding between counsel regarding whether the setoff procedure should be SONY DSCdecided by the jury or by the court after the verdict. The plaintiff’s counsel did not dispute the amount of the setoff but did not stipulate to the issue being addressed after the verdict. The trial court ruled that the matter would be decided post-verdict, overruling the plaintiff’s objection, and the defendant relied on the ruling and did not present evidence of the PIP benefits.

After trial, the defendant moved to apply the setoff. The plaintiff objected, raising the Florida Supreme Court decision in Caruso v. Baumle. In that case, the Florida Supreme Court held that the defendant must present evidence of PIP payments at trial so the verdict can be reduced by the setoff, absent stipulation otherwise. The plaintiff argued that with no stipulation, the trial court had to deny the defendant’s motion for setoff. The trial court did just that, entering judgment without the setoff, and the defendant appealed.

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Many people do not realize the limits that cruise lines place on their rights when they purchase a ticket. The ticket contract may limit the time a 1343715_16060499person has to file a lawsuit against the cruise line as well as the court in which the case must be filed.

In Royal Caribbean Cruises, LTD v. Clarke, the Third District reviewed the trial court’s denial of a motion to dismiss a case against a cruise line for improper venue.The court did not detail the nature of the claim, beyond noting it was a negligence case filed against the cruise line in state court before the expiration of the one-year contractual limitation period. The defendant moved to dismiss on the grounds that the venue was improper. The defendant submitted an affidavit that stated the plaintiff had to check in and accept the terms and conditions of the ticket contract before boarding. The trial court denied the motion, finding there was not any evidence that the plaintiff had received and read the ticket contract.

The ticket contract stated that it contained important limitations on the passengers’ rights and specifically pointed out certain provisions, including the provisions containing the one-year limitation period and  forum selection. The forum selection provision required that all disputes arising under or in connection with the agreement be litigated before the United States District Court for the Southern District of Florida.

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The dangers of driving while talking, texting, or using other features of a smartphone are well documented. It is common for parties in an automobile accident case to request cell phone records. What happens, though, when a party asks to inspect the actual phone?

The First District recently addressed this issue in Antico v. Sindt Trucking, Inc. This case was a wrongful death action in which the defendant moved for an expert inspection of the deceased driver’s cell phone data for the day of the accident. The plaintiff, who was the personal representative of the deceased driver, objected on privacy grounds. The trial court granted the defendant’s motion. The plaintiff then filed a KONICA MINOLTA DIGITAL CAMERApetition for a writ of certiorari, seeking to have the discovery order quashed.

The order allowed the expert to examine the phone at the defense’s expense, in the presence of the plaintiff’s counsel. It set forth the specific steps to be followed. After the hard drive was copied, the expert was to review only the data for the nine-hour period allowed by the court. After reviewing the data, the expert was to prepare a summary and provide it to the plaintiff’s counsel, who would then have 10 days to move for a protective order or object to release of any of the information. If the 10 days passed without objection, the expert could release the information to the defendant.

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It is common for a party in litigation to serve the other party with a written request for admission pursuant to Florida Rule of Civil Procedure 1.370. Under the rule, a party may request admission of the truth of any matters that fall within the scope of discovery “that relate to statements or opinions of fact or of the application of law to fact….” The requests are limited to 30, including any subparts, unless the parties agree or the court grants a motion to allow more. The matter is considered admitted unless a written answer or objection is served upon the requesting partyfile3441297827352 (800x600) within 30 days after the request was served, or the time allowed by the court. If a matter is admitted, it is conclusively established unless the court allows it to be withdrawn or amended. The court may permit withdrawal or amendment when it will subserve the presentation of the merits, and there is no prejudice to the requesting party. Admissions are limited to the present action.

Since matters are deemed admitted if the party fails to answer in a timely manner, it is possible for a matter to be accidentally or inadvertently admitted. The Fourth District recently ruled on a case in which admissions were inadvertently made by the defendant.

In United Automobile Insurance Company v. West Hollywood Pain & Rehabilitation Center, the rehabilitation center, as the agent of an insured, filed suit against an automobile insurer for payment of personal injury protection benefits. The plaintiff requested admissions, including requests that the defendant admit liability. The defendant inadvertently filed a late response to the requests for admissions. The defendant moved for relief and on the same day filed an answer. Almost a year later, the plaintiff moved for summary judgment.

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The 11th Circuit has reversed the trial court’s decision in Murphy v. Dulay. As this blog has previously discussed, Florida malpractice law requires a prospective medical malpractice plaintiff to provide pre-suit notice to the prospective defendants, including a list of the injured person’s healthcare providers after the alleged negligence and those seen in the two years immediately prior. The law also requires the prospective plaintiff to provide a signed authorization allowing the healthcare providers to release information to the defense attorneys, defense experts, the liability insurer, and the trier of fact. The authorization also specifically allows the defense to interview the healthcare providers outside the presence of the patient or the patient’s attorney. The trial court found that the Health Insurance Portability and Accountability Act (“HIPAA”) preempted Florida medical malpractice statutes.1370556_32170671 (800x600)

The 11th Circuit noted that the statute expresses an intent to conform with HIPAA. Furthermore, the authorization does not apply to health care providers that the plaintiff certifies are not potentially relevant to the case. The plaintiff must provide the inclusive dates of the treatment that is to be withheld. Although the statute requires the authorization to permit ex parte communications between the defense and the health care providers, nothing in the statute requires the providers to agree to an interview. The authorization must inform the plaintiff that the information disclosed pursuant to the authorization may be subject to additional disclosure and may not be protected by HIPAA regulations.

On appeal, the defense argued that the Florida statute was compliant with HIPAA and its regulations. The circuit court analyzed the statute as to the relevant provisions of HIPAA and agreed.

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Accident victims are often required to sign a release when settling their injury claims. The scope of the claims covered by the release is determined by the language in the release. It is generally wise to wait until all claims are known and quantified before settling a claim and signing a release, but sometimes special circumstances mean additional claims arise after the release is signOLYMPUS DIGITAL CAMERAed.

In Moxley v. U-Haul Co. of Florida, the Second District determined the scope of a release signed by the personal representative of a man killed in an automobile accident. Mr. Bell was listed as an authorized driver on the rental agreement of a moving truck. While Mr. Bell was driving, the truck struck another vehicle, killing Mr. Bell and allegedly injuring the other driver. Mr. Bell’s personal representative settled certain claims the estate had against the moving truck company for $5,000 and signed a release.

The personal representative subsequently filed suit against the other driver, and the other driver filed a counterclaim. Neither the moving truck company nor the deceased person’s own insurer provided a defense to the counterclaim. The court dismissed the claim filed on behalf of the estate and ultimately entered a judgment of more than $2 million for the other driver and her husband.

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Florida personal injury cases often involve one or more citizens of another state or country. Procedural requirements are complicated when a OLYMPUS DIGITAL CAMERAparty is not a Florida citizen. Service of process becomes far more complex when the defendant is a foreign citizen.

In Alvarado-Fernandez v. Mazoff, the Fourth District addressed a case in which the plaintiff had difficulty serving a foreign defendant. The plaintiff sued the defendant for injuries he received in an accident in which the defendant was driving a rental car. Shortly thereafter, he filed an affidavit of compliance stating that the Secretary of State accepted service of process and that he had tried to serve the defendant by mail. The defendant did not receive the documents. The plaintiff later amended his complaint and made a second attempt to serve the defendant, and again amended the complaint and made a third attempt when the second failed. He subsequently filed a third amended complaint, and the trial court allowed him eight extensions to attempt to effect a successful service.

The plaintiff then served the Secretary of State pursuant to the substituted service statute. He also mailed a copy to the defendant’s last known address by registered mail, but it was not claimed. He filed a late affidavit of compliance and asked the court to either accept it or grant another extension.

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