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ProveMyFloridaCase.com > Articles posted by David Adelstein

Employee’s Premise Liability Claim Barred by Disclaimer / Release in Employment Agreement

Many times, an employee is required to sign a contract or agreement by the employer as a condition of employment.   If the employee does sign, they are employed.  If the employee does not sign, there is no employment.  The catch-22 when it comes to employment agreements.  If you have questions about what you are signing, do yourself a favor and consult with counsel.  This way, you at least have an understanding as to what rights you may be foregoing. There are times these employment agreements are later challenged in court by the employee when the employee leaves the company and argues...

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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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Work Product Document and Withholding of Documents Based on Doctrine

When it comes to the protection of information in litigation, there are generally two doctrines that apply.  First, there is the attorney-client privilege.  Makes sense.  The second is what is known as the “work product” doctrine.  This doctrine stands for the proposition that what a party does in anticipation of litigation is protected from disclosure during discovery.  This could include a party’s legal or mental impressions, or strategic decisions and organization relative to a pending or ongoing dispute. Typically, when a document is withheld under either the attorney-client privilege or work product doctrine, it will be identified on a privilege log. ...

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Nature of Disclosure under Florida’s Public Whistleblower Act

  In a prior article, I discussed damages under Florida’s Public Whistleblower Act set forth in Florida Statute s. 112.3187.   When dealing with Florida's Public Whistleblower Act, an important question needs to be asked.  What type of disclosure by a whistleblower triggers protection of a public employee under the Act?  “To establish a prima facie case under the [Florida Public] Whistle-blower's Act, the plaintiff must show that (1) prior to her termination, she made a disclosure protected by the Act; (2) she suffered an adverse employment action; and (3) some causal connection exists between the first two elements.”  Pickford v. Taylor County...

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Declaratory Relief in Insurance Coverage Dispute

Insurance coverage disputes are prime actions for declaratory relief.  An insurer or insured may pursue an action for declaratory relief in an insurance coverage dispute. A lawsuit seeking declaratory relief must allege: [1] there is a bona fide dispute between the parties, [2] that the moving party has a justiciable question as to the existence or non-existence of some right, status, immunity, power or privilege, or as to some fact upon which the existence of such right, status, immunity, power or privilege does or may de[p]end, [3] that plaintiff is in doubt as to the right, status, immunity, power or privilege, and...

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Statute of Limitations Accrual for Breach of Contract

A claim must be filed within the applicable statute of limitations.  A person or entity that believes they have a claim needs to consult with counsel regarding the statute of limitations associated with their claim. A claim filed outside of the statute of limitations is time-barred.  This should be avoided in all circumstances.  A key is always when does the statute of limitations accrue with respect to a claim.  Accrual is tied to when the last element of a cause of action occurs.  See Fla. Stat. s. 95.031.  The time starts to tick when a claim accrues. When it comes to a...

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Enforce Settlement Agreement OR Breach of Settlement Agreement

 When you enter into a settlement agreement, the intent is for the parties to comply with their settlement obligations.  Why enter into a settlement agreement that you know you are not going to comply with?  That would not make sense, right? Unfortunately, it occurs.  A party may not comply with a continuing obligation.  And, it is always frustrating when this happens for the other party expecting that obligation to be performed. When a settlement agreement is entered, particularly if it requires obligations that will not occur immediately, a party will want to dismiss the case requesting the trial court enter an order...

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Objecting and/or Refusing to Participate in Employer’s Activity in Violation of a Law, Rule, or Regulation under Florida’s Whistleblower Act

Previously, I discussed damages recoverable under Florida’s Whistleblower Act (“FWA”).  What is the FWA?  The FWA prohibits an employer from taking retaliatory action against an employee because the employee has “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” § 448.102(3), Fla. Stat. (2005). “ ‘Law, rule, or regulation' includes any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.” § 448.101(4), Fla. Stat. (2005). To establish...

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Quick Note: Obtaining a Default Final Judgment

When a defendant does not timely respond to the lawsuit, a plaintiff will move for a default against the defendant.  Sometimes a plaintiff will ask the clerk to issue a default and other times the plaintiff will ask the court to issue a default.  A default serves as an admission of liability by the defendant with the issue then being whether the plaintiff’s damages are liquidated or unliquidated as it pertains to obtaining a default final judgment: Damages are liquidated when the amount to be awarded can be determined with exactness from a pleaded agreement between the parties, by an arithmetical calculation,...

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Appealing a Protective Order that Precludes You from Deposing Material Witness

In a recent article, I discussed that if you are appealing a discovery order, you are doing so through a petition for a writ of certiorari.  I further discussed that this was not an easy appeal, and typically, it is not an easy appeal.   But, what about the scenario where the trial court precludes you from taking a deposition of a material witness?  For instance, say you want to take a witness’ deposition and the opposing side moves for a protective order to prevent that deposition from going forward.  Say the trial court agrees with the opposing party and grants...

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