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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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Venue Considerations when Challenging Venue

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...

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Draft Agreements with Clarity or…

If you ever want to know why a contract or any agreement should be clearly written, here is the reason.  In a recent case, 41 Acquisition Holdings, LLC v. Haff, 48 Fla.L.Weekly D1127a (Fla. 3d DCA 2023), the settlement agreement contained the following language: The court shall retain jurisdiction to enforce this agreement and, an enforcement action or motion, if any, shall be made by the party claiming a breach against the party alleged to have committed the breach and shall not affect any party who is not alleged to have breach this agreement and the prevailing party in any enforcement...

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Doctrine of Equitable Contribution

Here is an interesting case dealing with the doctrine of equitable contribution which “applies to cases involving joint contractual obligations when the parties’ agreement does not address their rights to seek contribution.” Shamieh v. HCB Financial Corp., 48 Fla.L.Weekly D377a (Fla. 1st DCA 2023).  In this case, two persons executed a mortgage and promissory note to purchase property. The persons were jointly and severally liable under the mortgage.  They defaulted on the mortgage and one of the persons paid $1 million to settle the debt.  That person sued his co-obligor under the mortgage for half of the settlement amount under...

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Doctrine of Respondeat Superior

The doctrine of respondeat superior provides that “an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.”  “An employee's conduct is within the scope of his employment, where (1) the conduct is of the kind he was employed to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part...

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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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