Joseph S. Kashi Appellate Practice Law Blog on Lawyers.com

AUTOMOBILE MEDICAL EXPENSE COVERAGE; SUMMARY JUDGMENT

 State Farm Mutual Automobile Insurance Co. v. Mashburn, ___ So. 3d ___, 34 Fla. L. Weekly D1320 (Fla. 1^st DCA 6/30/09)

            Mashburn and Palacios lived together but were unmarried.  Palacios bought a car for Mashburn and insured it with State Farm, but Palacios owned the car and was the only named insured.  The policy provided medical expense coverage for the named insured, his or her spouse, their relatives, and any other person while occupying the vehicle covered under the liability section of the policy.   When Palacios bought a new car for Mashburn, the new State Farm policy provided medical expense coverage for the named insured and any relative but no longer provided coverage for any other person while occupying a vehicle covered under the liability section of the policy.  As a result, Mashburn was not entitled to medical expense coverage when she was involved in an accident while using the insured vehicle, and the trial court erred by entering summary judgment on her behalf.  On appeal, Mashburn argued that the new policy resulted in a failure or refusal to renew coverage for Mashburn without the statutorily required 45 day notice, but the court refused to consider the merits of this argument because Palacios acknowledged receiving notice of the new endorsement, and Mashburn failed to raise this point in her motion for summary judgment.  Mashburn argued that she raised the notice issue in an affidavit, but the court held this was insufficient, and the issue had to be raised in her motion.  At oral argument, Mashburn’s lawyer argued that she should have been covered, but the pleadings did not support this argument.  As a result, the court reversed and remanded with instructions to give Mashburn the opportunity to raise other theories supporting her claim.

 REAL ESTATE COMMISSIONS

 Boone v. Pelican Real Estate and Development Co., ___ So. 3d ___, 34 Fla. L. Weekly D1324 (Fla. 1^st DCA 6/30/09)

            Before Boone obtained his real estate license, he would receive a 25% referral fee when he referred buyers of condominium units.  Because of delays in construction, the contracts for some of the buyers who Boone referred had to be rewritten after Boone obtained his real estate license, and Boone was listed as the sales agent on those contracts.  As a result, Boone claimed a full agent’s commission rather than a referral fee.  The trial court determined that Boone was relegated to a referral fee, but the appellate court reversed because the trial court applied the “procuring cause” standard, which is inapplicable in a dispute between a broker and his associate.  Rather, the doctrine of procuring cause applies to controversies between two brokers or a broker and a buyer or seller.  The dispute in the present case should have been resolved according to the terms of the contract between Boone and his broker.

 VOLUNTARY DISMISSAL:  TWO DISMISSAL RULE

 Mieses v. Applebee’s, ___ So. 3d ___, 34 Fla. L. Weekly D1325 (Fla. 1^st DCA 9/18/03)

            The claimant filed one piece of paper that dismissed three petitions for worker’s compensation benefits. This filing was treated by the appellate court as three dismissals rather than one for the purpose of applying the “two-dismissal” rule.

 IME; EXPERT TESTIMONY; OFFER OF JUDGMENT

 Allstate Property & Casualty Insurance Co. v. Lewis, ___ So. 3d ___, 34 Fla. L. Weekly D1326 (Fla. 1^st DCA 6/30/09)

            The trial court erred in granting the plaintiff’s motion for new trial in an uninsured motorist case on the ground that the defense doctor’s testimony varied from his written report.  According to the appellate court, there was no substantial change between the doctor’s report and his trial testimony, and an expert’s testimony should not be limited to “the exact wording of his or her written report.”  In this case, the controversial testimony was elicited by the plaintiff’s lawyer during cross examination, and any prejudice was cured by the trial court’s order limiting the doctor “to the ultimate conclusions stated within his report.”

            The appellate court remanded to the trial court to rule on the defendant’s motion for attorney’s fees based upon its offer of judgment.  The offer of judgment sought to discharge all claims “which are the subject matter of the above captioned lawsuit.”  The court rejected the plaintiff’s contention that this offer was so vague it could cut off “future causes of action unrelated to the subject matter of the instant case.”

 CUSTODY AND VISITATION:  ADULT CHILD

 Gamache v.Gamache, ___ So. 3d ___, 34 Fla. Fla. L. Weekly D1333 (Fla. 2d DCA 7/1/09)

            After the trial court awarded primary residential responsibility of an incapacitated minor child to the wife, she moved to Kansas with the child.  After the child turned 18, the parents agreed to a rotating custody arrangement, which was ratified by the trial court.  When the wife violated the agreement, the trial court held her in contempt of court, but a successor judge set aside the contempt order on the ground that it lacked jurisdiction over visitation and custody once the child attained majority. The appellate court affirmed because the child had never been declared to be incompetent in either Florida or Kansas, and a guardianship had never been established for him.  Therefore, under Florida law, the child was considered to be a competent, legal adult although he obviously was suffering from some level of mental incapacity.  The trial court lacked subject matter jurisdiction over visitation and custody, and it lacked in personam jurisdiction over the child.  This result was not altered by the fact that the child was entitled to receive child support beyond the age of minority under Section 743.07(2), Florida Statutes, because of his incapacity.

 CLOSING ARGUMENT

 Community Asphalt Corp. v. Bassols, ___ So. 3d ___, 34 Fla. L. Weekly D1342 (Fla. 3d DCA 7/1/09)

            The trial court in a personal injury case erred by granting a new trial based upon the defendant’s closing argument.  During the trial, the plaintiff’s sister testified about a $1.4 million marketing deal with Red Bull.  During closing argument, defense counsel stated, “You should expect more evidence than his sister coming into court.  You should expect something from Red Bull.” The trial court overruled the plaintiff’s objection based upon the rule that “when witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness.”  The appellate court affirmed because the reference to “something from Red Bull” did not necessarily refer to a witness and, after the objection was overruled, defense counsel went on to say, “You should expect a contract.”  The court construed this argument as a permissible comment on the lack of evidence to support the opposing party’s position.  The defense lawyer also commented upon the absence of the plaintiff’s coaches to verify his sister’s testimony that he was an Olympic caliber athlete, but the plaintiff did not object, and the court did not consider the comment to be sufficiently prejudicial to warrant a mistrial.

 STATUTE OF LIMITATIONS:  INJUNCTIONS, SPECIFIC PERFORMANCE

 Fox v. Madsen, ___ So. 3d ___, 34 Fla. L. Weekly D1343 (Fla. 4^th DCA 7/1/09)

            Madsen sought and obtained a mandatory injunction requiring his next door neighbors to remove the portion of their driveway that violated the declaration of restrictions for their subdivision.  The court held that “a mandatory injunction is the proper method of enforcing restrictive agreements on property” and that Madsen’s action was governed by the five year statute of limitations on legal or equitable actions on a contract, obligation, or liability founded on a written instrument, rather than the one year statute of limitations on an action for the specific performance of a contract.

 MANDATORY NON-BINDING ARBITRATION; ATTORNEY’S FEES; PLEADING

 Cooper v. Marriott International, Inc.,  ___,  34 Fla. L. Weekly D 1344 (Fla. 4^th DCA 7/1/09)

            The trial court in a personal injury case ordered the parties to participate in mandatory non-binding arbitration under Section 44.103, Florida Statutes (2004).  The arbitrator awarded $7,500.00 to the plaintiff, but the plaintiff demanded trial de novo, and the defendant prevailed at trial.  As a result, the defendant sought attorney’s fees.  Although the plaintiff originally acquiesced to the defendant’s entitlement to fees, it subsequently objected on the ground that the defendant did not plead an entitlement to fees.  The court held that a claim for fees under Section 44.103 need not be pled prior to the termination of the case and that in any event, the plaintiff waived this argument by failing to object to the defendant’s proposed final judgment, which reserved jurisdiction to award fees and costs under Section 44.103, either before or after the entry of the judgment.

 SECTION 57.105 FEES

 Department of Children and Families v. S.E., ___ So. 3d ___, 34 Fla. L. Weekly D1346 (Fla. 4^th DCA 7/1/09)

            DCF filed a petition for dependency based upon the premise that the mother suffered from Munchausen Syndrome by Proxy.  More than 21 days after the mother served a motion for attorney’s fees under Section 57.105 Florida Statutes, DCF sought to drop its Munchausen Syndrome by Proxy claim but continued to press its petition on the basis that the mother posed a threat of harm to her children.  The trial court dismissed DCF’s petition and awarded fees to the mother.  The appellate court held that the trial court abused its discretion. “Because the [Child Protection Team's] doctors remained convinced throughout the pendency of this litigation that a risk of imminent abuse, abandonment, or neglect existed, despite the withdrawal of the Munchausen Syndrome by Proxy allegations, we find that DCF’s petition for dependency was always supported by the necessary material facts to overcome an award of Section 57.105 fees.”

 MEDICAL MALPRACTICE; APPARENT AGENCY; SUMMARY JUDGMENT

Ginsberg v. Northwest Medical Center, Inc., ___ So. 3d ___, 34 Fla. L. Weekly D1349 (Fla. 4^th DCA 7/1/09)

            The court reversed a summary judgment for the hospital in a medical malpractice case.  The hospital contended that it could not be liable for the alleged negligence of two surgeons because the consent form signed by the plaintiff stated, “I acknowledge and agree that the surgeon and physician associates are independent contractors and are not employees or agents of Northwest Medical Center and that Northwest Medical Center does not control the manner or methods by which such procedures are performed.”  Summary judgment erroneously was entered on behalf of the hospital because (1) the hospital failed to establish that the consent form was a business record, (2) the plaintiff testified that he did not understand the consent form when he signed it because he was under the influence of pain medication and did not have his glasses, and (3) the hospital did not conclusively refute the plaintiff’s allegations that the hospital held out the two doctors as possessing the authority to act on its behalf and knowingly permitted the two doctors to hold out themselves as possessing the authority to act on behalf of the hospital.  The court remanded with instructions to give the hospital the opportunity to establish that the consent form was a business record and to give both parties the opportunity to submit additional evidence on the issue of apparent agency.

 APPEALS:  SANCTIONS

Affirmative Insurance Co. v. Gomez, ___ So. 3d ___, 34 Fla. L. Weekly D1350 (Fla. 4^th DCA 7/1/09)

            The circuit court denied procedural due process of law to the appellant by dismissing its appeal for violation of a court order because the order failed to warn the appellant that failure to comply with the order could result in dismissal of the appeal. 

 ARBITRATION:  FORUM SELECTION CLAUSE

 Remington Financial Group, Inc. v. Anchors Aweigh Marine, Inc., ___ So. 3d___, 34 Fla. L. Weekly D1359 (Fla. 4^th DCA 7/1/09)

            The trial court erred in failing to enforce the forum selection clause in an arbitration agreement controlled by the Federal Arbitration Act.

 GOVERNMENTAL LIABILITY:  DUTY; SOVEREIGN IMMUNITY

 Labance v. Dawsy, ___ So. 3d ___, 34 Fla. L. Weekly D1362 (Fla. 5^th DCA (7/2/09)

            Labance, a visitor in the Robbins’ home, was shot in the hand during an outbreak of gunfire when a deputy sheriff attempted to execute a search warrant at the residence.  The trial court erroneously dismissed the complaint for failure to state a cause of action because “Labance adequately alleged the existence of a special relationship based upon the deputy’s creation of a foreseeable zone of risk to the occupants of the Robbins’ residence at the time of the execution of the search warrant.”  Once a duty was established, the question became whether the sheriff was entitled to sovereign immunity, but the allegations of the complaint were inadequate to enable to the court to make this determination.  Reversal was warranted because the order of dismissal was based upon the absence of a legal duty rather than the failure to allege sufficient ultimate facts.  On remand, Labance would be given the opportunity to amend her complaint.

 PARENTAL RIGHTS:  ILLEGITIMATE CHILDREN

Shuler v. Guardian Ad Litem Program, ___ So. 3d ___, 34 Fla. L. Weekly D1364 (Fla. 5^th DCA 7/2/09)

            Shuler impregnated a woman while she was married to another man, and the woman gave birth to a daughter.  The Department of Children and Family Services (DCF) filed a petition for dependency and for termination of parental rights against the legal parents (the biological mother and her husband), and the petition was granted.  When Shuler’s motion to intervene in the dependency proceeding was denied, he filed a petition to determine paternity, and DNA testing established that he was the biological father.  Nevertheless, the trial court denied Shuler’s paternity petition and placed the daughter with DCF for adoption.  The appellate court affirmed.  “A man who father’s a child with a woman who is married to another man generally has no parental rights or responsibilities to the child. . . .  Under Florida’s common law, such men can acquire parental rights and responsibilities through a judgment of paternity; however, that remedy is narrow. . . .  [A]s to the biological father of a child born during the course of the mother’s intact marriage:  the mother’s husband is the child’s legal father unless and until a court effects the substitution.”  In this case, the legal parents’ rights to the child were terminated before Shuler filed his paternity action.  Once parental rights were terminated, the child became adoptable.  The child’s adoptability did not change because Shuler subsequently was determined to be the child’s biological father. 

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This synopsis was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at: http://www.florida-insurance-lawyers.com/.