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Owner Jointly and Severally Liable for Nondelegable Duty

Previously, I discussed the case of Walters v. Beach Club Villas Condominium, Inc., 2020 WL 912943 (Fla. 3d DCA 2020) as it pertains to the Fabre defense. In this case, the plaintiff--a guest of a condominium unit owner--sued the association and the association’s dock contractor after she injured herself on an unfinished dock.  The association hired a dock contractor to repair and replace a dock and the work was unfinished on the date the plaintiff injured herself. The plaintiff claimed the association was jointly and severally liable for the dock contractor’s portion of damages.   The appellate court agreed because the association...

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Value of Severability Clause

Severability clauses have become fairly commonplace in contracts.  Cut and paste provisions.  However, these clauses can provide tremendous value.  A sample of a severability clause is as follows: If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement. There are numerous ways to draft...

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Adding a Non-Party Fabre Defendant to the Verdict Form

In a recent premises liability action, the defendant appealed claiming the trial court failed to include a nonparty Fabre defendant on the verdict form.  The appellate court disagreed and affirmed the trial court on this issue. It has become a common occurrence for parties to want others on the jury verdict form to give the jury an opportunity to allocate fault to a party other than them.  And why not?  However, this is not really how it works.  A party cannot just argue that another party should be added to the verdict form just for the sake of it.  That would...

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Piercing the Corporate Veil is NO Easy Feat

Piercing a corporate veil to go after principals in their personal capacity is no easy feat.  And it should not be viewed as an easy feat.  While there are times trying to pierce the corporate veil is warranted, a party still MUST PROVE the requirements to pierce the protections of a corporate structure to go after the principals in charge of the corporate entity. Otherwise, doing business under a corporate structure would be severely emasculated. To pierce the corporate veil, a party must prove the following elements: “(i) [the person] dominated and controlled [the corporate entity] to such an extent that the...

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Personal Jurisdiction and Florida Court’s Two-Prong Analysis

When a defendant is sued, a court needs to have personal jurisdiction over that party.  It is a due process consideration to ensure the court has authority over that party.  A court’s ruling as to personal jurisdiction over a party will give a right to an immediate appeal.  The issue of personal jurisdiction is generally confronted when the defendant is a foreign person or company, i.e., not operating in Florida, being sued in Florida.  Making the decision to sue a foreign person or company in Florida needs to consider personal jurisdiction including the appellate right associated with a court's ruling on...

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Comparative Fault Applies when Substance of the Action is Sounded in Negligence

In previous postings (check here and here) I discussed the doctrine known as comparative fault or comparative negligence referenced in Florida Statute s. 768.81.  This is when the trier of fact allocates a parties percentage of fault to the damages claimed by the plaintiff.  A party can only be liable for their pro rata percentage of fault and fault can even be allocated to the plaintiff.   This doctrine typically applies in negligence claims.   However, in a recent construction dispute dealing with only economic damages, further discussed here, the appellate court considered that Florida Statute s. 768.81 focuses on the...

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Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”).  A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount.  (See this article for more on proposals for settlement).   For a plaintiff (party seeking affirmative relief), the plaintiff must obtain a judgment 25% greater than the proposal for settlement amount. When there are multiple defendants, the plaintiff needs to serve a proposal for settlement on each defendant.    In Cassedy, Jr. v. Wood,44 Fla.L.Weekly...

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A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Arbitration is a creature of contract.  This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate.  However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of reasons: 1) a party does not want to arbitrate the dispute and, therefore, files a lawsuit versus a demand for arbitration and 2) an opposing party that has been sued wants to enforce an arbitration provision in a contract.  As a result, an order granting...

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Leading Questions Forming Basis of Appeal

During a direct examination at trial, a party will always tiptoe on the fine line of asking the witness leading questions in order to elicit the desired testimony.  Leading questions, in most circumstances, are objectionable during direct examination because it allows the lawyer asking questions to basically testify while leading the witness to the answer he or she is seeking.   Look, a lawyer will ask leading questions if he/she can get away with it—until the trial court sustains objections.  But, just because a trial court sustains an objection does not necessarily mean the lawyer will stop asking leading questions during direct...

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The Nonparty Fabre Defendant

I want to discuss the concept of a “Fabre defendant.” This is an important concept in negligence cases, particularly personal injury and property damage cases. “A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly of partially responsible for the negligence alleged [by the plaintiff].” Salazar v. Helicopter Structural & Maintenance, Inc., 986 So.2d 620, n.1 (Fla.2d DCA 2007). As further explained in Florida Statute s. 768.81(3): (3) Apportionment of damages.--In a negligence action, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the...

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