03 December

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Insurer’s Claim File Not Categorically Privileged

A recent appeal (petition for a writ of certiorari) in a property insurance coverage dispute supports two important points regarding discovery disputes in insurance coverage cases, particularly regarding an insurer's claim file. First, “certiorari review is appropriate for discovery dispute orders requiring production of allegedly privileged documents.” Homeowners Choice Property & Casualty Ins. Co., Inc. v. Thompson, 48 Fla.L.Weekly D2218e (Fla. 1st DCA 2023). Second, there is NOT a categorical privilege on an insurer’s claims files. “Documents in claims and underwriting files are not automatically work product. The insurer did not argue or prove that the requested documents were prepared in anticipation...

25 November

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Introduce the Right Circumstantial Evidence for Purposes of “Admission by Party Opponent” Hearsay Exception

Posted by David Adelstein

in Evidence, Trial Perspectives

One of the exceptions to hearsay is known as an admission by a party opponent. In Florida, this hearsay exception is included in Florida Statute s. 90.803(18): (18) ADMISSIONS.—A statement that is offered against a party and is: (a) The party’s own statement in either an individual or a representative capacity; (b) A statement of which the party has manifested an adoption or belief in its truth; (c) A statement by a person specifically authorized by the party to make a statement concerning the subject; (d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence...

19 November

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Incorporated Documents (such as an Addendum) Need to be Identified as Incorporated

Posted by David Adelstein

in Trial Perspectives

If you have a document you want incorporated into the contract, make sure the contract specifically identifies the incorporated document. Otherwise, that document will NOT form the basis of your contract and if that document is not executed, it will NOT affect the enforceability of your contract. By way of example, in Mercado v. Sridhar, 48 Fla.L.Weekly D2188a (Fla. 3d DCA 2023), a buyer and seller entered into a purchase-and-sale contract. The issue was an addendum relating to the seller’s furnishings and a leaseback option that was never executed. The buyer sued the seller for specific performance when the seller refused...

12 November

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Accord and Satisfaction requires Good Faith Conduct

Posted by David Adelstein

in Trial Perspectives

The party asserting accord and satisfaction must prove that “the amount of the claim was unliquidated or subject to a bona fide dispute.” [See Florida’s Uniform Commercial Code, § 673.3111(1).] The dispute cannot arise after the party seeking accord and satisfaction tenders the payment instrument intended to satisfy or discharge the debt. *** The party seeking accord and satisfaction must also tender the instrument in good faith. Because Florida caselaw regarding good faith in an accord and satisfaction context is relatively undeveloped, court decisions in other states with similar accord and satisfaction statutes are instructive. *** “Accord and satisfaction is something that must be...

05 November

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The Violation of a Company’s Internal Policies Alone does Not Create a Duty Owed to a Third Party

Posted by David Adelstein

in Appeal, Standard of Review

Can internal policies of a company create a standard of care or duty to a plaintiff? Stated another way, can a company’s violation of its internal policies result in a breach of that company’s standard of care or duty to plaintiff? A recent case, Discount Tire Co. v. Tammy Bradford, as the Personal Representative of the Estate of Bradford, 2023 WL 7228186 (Fla. 5th DCA 2023), in analyzing case law with respect to this issue, answered this issue in the negative: a company’s internal policy’s do not alone create duties owed to third parties. In this case, a retail tire company was...

29 October

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Rescission of Contract based on Mutual Mistake

Posted by David Adelstein

in Trial Perspectives

To state a cause of action for rescission of a contract, a plaintiff must include the following elements in the complaint: (1) The character or relationship of the parties; (2) The making of the contract; (3) The existence of fraud, mutual mistake, false representations, impossibility of performance, or other ground for rescission or cancellation; (4) That the party seeking rescission has rescinded the contract and notified the other party to the contract of such rescission. (5) If the moving party has received benefits from the contract, he should further allege an offer to restore these benefits to the party furnishing them, if restoration is possible; (6) Lastly,...

20 August

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Venue Considerations when Challenging Venue

Posted by David Adelstein

in Appeal, Trial Perspectives

In a recent construction dispute, Schultz Builders & Pools, Inc. v. Icon Welding & Fabrication, LLC, 48 Fla.L.Weekly D1381b (Fla. 2d DCA 2023), a general contractor hired a subcontractor. The subcontract contained NO venue provision or specified where payments were to be due. This was important because the general contractor and subcontractor were located in different counties and the general contractor was located in the county where the project at-issue was located. A payment dispute arose, and the subcontractor sued the general contractor in the county where it was located. The general contractor moved to transfer venue to the county...

06 August

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Jury Instructions and your Case THEORY

Posted by David Adelstein

in Jury Instructions

When it comes to jury trials – really any trial, bench or jury – your theory matters. A lot. Your theory should not be overlooked. It is your theme in context and perspective. You put on evidence to support your theory so that it falls in your given context and perspective. Your theory or theme is your story that supports your burden of proof. Your opening statement sets your case up with your theory and the evidence you will put on the support the theory. Your closing statement then summarizes your theory with the evidence introduced. With respect to jury instructions,...

04 July

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Equal Wrongdoing Doctrine Known as In Pari Delicto

Posted by David Adelstein

in Trial Perspectives

There is a legal doctrine known by its Latin phrase, in pari delicto, that: [R]efers to ‘[t]he principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing.” This principle is ‘grounded on two premises: first, that courts should not lend their good offices to mediating disputes among wrongdoers; and second, that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality.’ Perry v. Turner, 48 Fla.L.Weekly D1307a (Fla. 2nd DCA 2023) (internal citations omitted). As shown, it is premised on the fact that one cannot be rewarded for their equal wrongdoing, i.e.,...

25 June

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Affidavits and Declarations Used for Summary Judgment

Posted by David Adelstein

in Trial Perspectives

When a party moves or opposes a motion for summary judgment, the party will include an affidavit or declaration. The affidavit or declaration MUST be legally sufficient to have any weight. Do not take it from me. Take it from the recent appellate decision in Savoy v. American Platinum Property & Casualty Insurance, 48 Fla.L.Weekly D1241a (Fla. 4th DCA 2023) where the appellate court held the movant’s affidavit was insufficient because it was not based on the affiant’s personal knowledge. The legally insufficient reason served as a basis for the appellate court to reverse the summary judgment in favor of...