30 June

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Striking an Affirmative Defense

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy. Yet, in a different context, this case deals with a trial court striking a defendant's (insurer) affirmative defense and precluding the defendant (insurer) from amending its affirmative defense prior to trial. “The standard of review of an order striking an affirmative defense is abuse of discretion. An order denying a defendant’s motion to amend its affirmative defenses is also reviewed for an abuse of...

23 June

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Hearsay within a Medical Record (Double Hearsay)

Posted by David Adelstein

in Evidence

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019). What about a party's statement within a medical record (double hearsay - hearsay within hearsay)? Well, that hearsay statement may be admissible if another exception permits its admissibility. Once such exception that could apply is an admission by a party opponent. For instance, in Strong, a person driving a motorcycle collided with an SUV. The motorcyclist sued the driver of the SUV. ...

15 June

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Premise Liability and the Obvious Danger Doctrine

Posted by David Adelstein

in Trial Perspectives

In the premise liability context: [T]he obvious danger doctrine provides that a landowner "is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party...

08 June

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Exculpatory Clauses MUST be Clear and Unequivocal

Posted by David Adelstein

in Trial Perspectives

I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign. Such documents are intended to have legal effect. By way of example, in Fresnedo v. Porky’s Gym III, Inc., 44 Fla. L. Weekly D1029a (Fla. 3d DCA 2019), the plaintiff sued his gym in negligence claiming he was injured by another person in the gym after this other person attacked him. The gym relied on a...

01 June

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Two Proposal for Settlement Considerations

Posted by David Adelstein

in Trial Perspectives

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days. In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney's fees. There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation. There are definitely strategic issues that must be considered when serving...

27 May

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A General Release is Not Absolute

Posted by David Adelstein

in Trial Perspectives

General releases, unfortunately, are not absolute. A recent ruling from the Third District Court of Appeal in Falsetto v. Liss, 44 Fla. L. Weekly D1340d (Fla. 3d DCA 2019) confirms this point, although, candidly, I have mixed feelings regarding this ruling. In this case, the Court held that the term “unknown” in a general release is not synonymous with the term “unaccrued;” thus, a release of an unknown claim does not mean a release of an unaccrued claim. In theory, this makes sense since a future claim should not be barred. It is one thing if the facts giving rise...

19 May

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Asserting Basis for Punitive Damages against Corporate Entity

Posted by David Adelstein

in Trial Perspectives

A defamation claim can serve as a basis to amend a complaint to add punitive damages. From prior articles (here or here) you know that asserting a basis for punitive damages is not made as of the date the lawsuit is filed. Rather, a plaintiff must comply with the statutory, procedural requirements and move to amend to assert punitive damages by proffering evidence that there is “a reasonable showing by evidence in the record…which would provide a reasonable basis for recovery of such damages.” Fla. Stat. s. 768.72(1). There are times a plaintiff wants to attribute an employee’s defamation of character to...

11 May

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Mutuality of Obligation when it comes to Contractual Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

The recovery of attorney’s fees is a creature of contract or statute. When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney's fees. Sometimes, contracts include one-way prevailing party attorney’s fees. In other words, the contract may provide that if one party (typically, the drafter of the contract) has to enforce the contract, the other party has to pay that party’s attorney’s fees and costs. But, what if the other party has to enforce the contract or prevails in the other party's enforcement action. ...

04 May

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Suing Third-Party for Spoliation of Evidence

Posted by David Adelstein

in Trial Perspectives

There is an independent spoliation of evidence cause of action against a third-party that accrues when that party “though not a party to the underlying action causing the plaintiff’s injuries or damages, loses, misplaces, or destroys evidence critical to that action.” Shamrock-Shamrock, Inc. v. Remark, 44 Fla. L. Weekly D1093a (Fla. 5th DCA 2019). This claim is a claim against a third-party – a party the plaintiff did not originally sue-- and known as a third-party spoliation of evidence claim. If a party, such as a defendant, in the underlying action damages, loses, misplaces, or destroys evidence, this is known as first-party spoliation of...

28 April

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The Contractual Right to Arbitrate a Dispute Can be Waived

Posted by David Adelstein

in Trial Perspectives

Arbitration is a form of dispute resolution. Instead of litigating your case in court with a judge, you arbitrate your case with an arbitrator. Arbitration is less formal and, ideally, the arbitrator will have more of a background relating to the issues driving the dispute. The parties either agree to an arbitrator or an arbitrator is appointed through a selection process. With everything, there are pros and cons to arbitration to be discussed in detail with your counsel. There are many disputes I prefer arbitration and there are many disputes I do not. Arbitration is a creature of contract so if...