Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you receive a non-final order that you believe impacts rights and decisions moving forward, make sure to review Florida Rule of Appellate Procedure 9.130 regarding those immediately appealable non-final orders.

In a recent insurance coverage dispute (discussed here), the trial court declared that the insurer had a duty to defend its insured in a personal injury lawsuit.   This declaration was issued in response to a motion for summary judgment. But, the order granting the summary judgment was a non-final order. The trial court did not enter a judgment against the insurer and did not declare the insurer was obligated to indemnify its insurer. Instead, the trial court simply declared that the insurer had an obligation to defend its insured in the lawsuit based on the underlying allegations in the lawsuit. The insurer did not like this declaration from the trial court and appealed.

The Third District dismissed the appeal holding that the trial court’s order was not an appealable non-final order.   Just because the trial court issued an order granting an insured’s summary judgment does not in of itself make that an appealable final order. If there are no words of finality concluding the dispute, the order granting summary judgment is simply a non-final order.   In this case, all the trial court declared was that the insurer had a duty to defend – but there was no declaration regarding the duty to indemnify or regarding potential damages.  Hence, the appellate court did not have jurisdiction to entertain the immediate appeal of the non-final order.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides:

Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with particularity.

It is common for a plaintiff to generally plead in its complaint, “All conditions precedent have been performed or have occurred.”   A defendant may want to assert an affirmative defense attacking or denying this allegation relating to the plaintiff’s failure to satisfy certain conditions precedent.   In doing so, a defendant must identify the nonperformance or nonoccurrence of conditions precedent with specificity. Any generality in this regard could end up hurting the defendant, especially if the defendant has a legitimate defense based on the plaintiff failing to comply with conditions precedent.  Hence, make sure to consider applicable conditions precedent and identify those with particularity that deny the plaintiff’s allegation that all conditions precedent have been performed or have occurred.

In a construction dispute, a contractor argued that the subcontractor failed to comply with conditions precedent. However, the contractor’s affirmative defense was general in nature – no particularity.   This may have been a legitimate defense supported by facts since the contractor argued the subcontractor’s failure to comply with conditions precedent to payment meant that the contractor was not obligated to pay the subcontractor. But, based on the generality of the contractor’s affirmative defense, the appellate court held that the contractor failed to property preserve the defense in its affirmative defenses:

In its amended answer, DFI [contractor] asserted, as an affirmative defense, that HRI [subcontractor] “has failed to allege, nor can it establish that it had meet [sic] each and every condition precedent to recovering payment in this cause pursuant to its Complaint.” Contrary to the requirements in Florida Rule of Civil Procedure 1.120(c), DFI did not specify which conditions precedents HRI did not comply with or how HRI failed to comply with them. Consequently, DFI’s answer to the complaint failed to preserve its right to demand proof that HRI complied with the conditions precedent to progress payments and final payment. See Fla. R. Civ. P. 1.120(c); Deutsche Bank Nat’l Tr. Co. v. Quinion, 198 So. 3d 701, 703-04 (Fla. 2d DCA 2016) (“[T]o construct a proper denial under the rule, a defendant must, at a minimum, identify both the nature of the condition precedent and the nature of the alleged noncompliance or nonoccurrence.”); Bank of Am., Nat’l Ass’n v. Asbury, 165 So. 3d 808, 810-11 (Fla. 2d DCA 2015); Cooke v. Ins. Co. of N. Am., 652 So. 2d 1154, 1156 (Fla. 2d DCA 1995); Paulk v. Peyton, 648 So. 2d 772, 774 (Fla. 1st DCA 1994).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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I am sure you have an insurance policy…some type of policy. An automobile liability policy. A commercial general liability policy. A professional liability policy. A property insurance policy. A directors and officers liability policy. A workers compensation insurance policy. There are many types of insurance policies. Maybe you might even have a contractors all risk insurance from constructaquote.com. I am sure you have some insurance policy to protect you or your business’s needs or risks. If you don’t have any insurance to cover your vehicles though, such as your van, you can go to Money Expert for more. You may have even been involved in an insurance coverage dispute or have had issues dealing with insurance coverage.

If you read any one of your insurance policies, you will probably be left with more questions than answers. You will be asking yourself “what does this mean?” or “what does this say?” and will often be left bemoaning “huh!?!” with every other sentence you read. Slowly, software for insurance agencies is being developed to make the customer interface, and policy information much more simple. This is the exact reason why there are insurance coverage disputes.

When it comes to insurance coverage disputes and the interpretation of the language in an insurance policy, the Florida Supreme Court importantly explained:

Insurance policy construction is a question of law subject to de novo review. Courts construe insurance contracts according to their plain language. However, “any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” A provision is ambiguous if it is “susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage.” The ambiguity must be genuine, and the lack of a definition for an operative term “does not, by itself, create an ambiguity “When a term in an insurance policy is undefined, it should be given its plain and ordinary meaning, and courts may look to legal and non-legal dictionary definitions to determine such a meaning.”

Government Employees Insurance Co. v. Macedo, 42 Fla. L. Weekly S731a (Fla. 2017) (internal citations omitted).

Obviously, if you have an insurance coverage dispute, you want to make sure you are represented by an attorney that understands the complexities of insurance coverage. Nonetheless, it is imperative that you understand that insurance policy construction is a question of law for the Court with a de novo standard of appellate review.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Many rules of civil procedure are liberally construed to prevent the  “oops!” or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable / excusable basis to justify why the technical error occurred.   Courts want parties to prevail on the merits of their dispute and not on who wins a procedural error.

An example of this general philosophy is the case of Well Fargo Bank, N.A. v. Shelton, 42 Fla. L. Weekly D1526a (Fla. 5^th DCA 2017), where the lender in a mortgage foreclosure action received requests for admissions, a common discovery tool to get a party to admit or deny certain facts. Those admissions of fact help narrow issues for purposes of trial because they narrow the facts in dispute since they serve as stipulated facts.  Based on these admissions, a party can move for summary judgment based on the lack of any genuine material fact in dispute.

The lender’s counsel, due to a calendaring error, failed to respond to the request for admissions for well over a year. During this time, discovery continued. The lender’s counsel realized the error (over a year later) and filed a motion in the court for the court’s permission to file a late response based on excusable neglect (the calendaring error). The lender also claimed that many of the requests in the requests for admissions would have been denied by evidence already in the record and filed with the lender’s verified complaint. After the lender filed this motion, the debtor moved for summary judgment arguing that the lender’s failure to timely respond to the request for admissions should be deemed an admission as to all of its requests. The court agreed and granted summary judgment (based on the technical error of not timely responding to the request for admissions). A technical win!

On appeal, the Fifth District reversed stating that Florida favors disputes to be decided on the merits rather than technical rules. In this case, the court found that even though the lender failed to respond to the request for admissions for well over a year, (1) discovery continued in the case, (2) there was evidence in the record contradicting some or all of the requests, (3) the debtor did not move for summary judgment until after the lender filed a motion for permission to file a late response, and (4) the debtor could not prove how it was prejudiced by the late admissions. Wells Fargo Bank supra (“In sum, the trial court erred in entering summary judgment based on the technical admissions because there was record evidence contradicting the admissions. In addition, the Sheltons failed to make a sufficient showing of how granting relief from the admissions would have caused prejudice.”) 

By no means am I in favor of committing or excusing technical errors, and by no means am I in favor of technical victories.  Waiting well over a year to try to respond to requests for admissions is ridiculous. (Also, the opposing party should have inquired as to the status of the admissions versus waiting over a year to try to obtain a technical victory.)  A calendaring error makes sense in this case because there really was no upside for the lender to not timely respond to these admissions – they were probably all easy denials. There was no strategic value to delay. But, over a year is a LONG time. And, the court provides no substantive discussion as to when a party is prejudiced by a technical error versus when a party is not. For instance, what if the debtor had moved for summary judgment before the lender realized it neglected to respond to the admissions? What if the parties were on a trial docket? What if the denials to the admissions were not so readily apparent from the record evidence? And, what if the debtor’s counsel tried to get the lender’s counsel to respond to the admissions months earlier?

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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We think of the word “conspiracy” in the criminal context. A criminal conspiracy. Sounds bad. Real bad. But, there is a cause of action in the civil context called “civil conspiracy.” Granted, this is a fact-based claim that is challenging to prove at trial, but nevertheless, such a claim exists if you can prove that co-conspirators conspired to commit an intentional tort or an intentional wrong.  

The Third District Court of Appeal in MP, LLC v. Sterling Holding, LLC, 2017 WL 2794218 (Fla. 3d DCA 2017) recently explained a claim for civil conspiracy:

The elements of a claim for civil conspiracy are: “(a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997). There is no requirement that each co-conspirator commit acts in furtherance of the conspiracy; it is sufficient if each conspirator knows of the scheme and assists in some way. Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157, 1160 (Fla. 3d DCA 2008).

“The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.” Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So.2d 949, 951 (Fla. 3d DCA 1984); see also Phelan v. Lawhon, 2017 WL 1177595 (Fla. 3d DCA 2017) (civil conspiracy claim must show independent wrong that would be an actionable wrong if it was committed by one person); Morris USA Inc. v. Boatright, 2017 WL 1356285 (civil conspiracy claim holds co-conspirators liable for “harm caused by other members of a conspiracy to commit an intentional tort.”); Walters v. Blankenship, 931 So.2d 137, 140 (Fla. 5^th DCA 2006) (action for civil conspiracy generally requires underlying wrong or tort).

As mentioned, a civil conspiracy claim requires an agreement between two or more parties – co-conspirators. Generally, a company cannot conspire with its officers, employees, and agents. Mancinelli v. Davis, 2017 WL 1278074, *2 (Fla. 4^th DCA 2017). The only exception to this would be if an agent has a personal stake in the underlying activities that is distinct from the company’s interest that results in more than an incidental benefit to the agent. Id.

Proving a conspiracy is always challenging so parties need to engage in legwork figuring out what elements they can prove on the front end and what specific discovery they need to focus on in order to connect the dots and prove a civil conspiracy. However, asserting this claim just to assert it is a mistake (in my opinion) without having an understanding as to what you think you can prove.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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