03 December

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Insurer’s Claim File Not Categorically Privileged

A recent appeal (petition for a writ of certiorari) in a property insurance coverage dispute supports two important points regarding discovery disputes in insurance coverage cases, particularly regarding an insurer's claim file. First, “certiorari review is appropriate for discovery dispute orders requiring production of allegedly privileged documents.” Homeowners Choice Property & Casualty Ins. Co., Inc. v. Thompson, 48 Fla.L.Weekly D2218e (Fla. 1st DCA 2023). Second, there is NOT a categorical privilege on an insurer’s claims files. “Documents in claims and underwriting files are not automatically work product. The insurer did not argue or prove that the requested documents were prepared in anticipation...

05 November

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The Violation of a Company’s Internal Policies Alone does Not Create a Duty Owed to a Third Party

Posted by David Adelstein

in Appeal, Standard of Review

Can internal policies of a company create a standard of care or duty to a plaintiff? Stated another way, can a company’s violation of its internal policies result in a breach of that company’s standard of care or duty to plaintiff? A recent case, Discount Tire Co. v. Tammy Bradford, as the Personal Representative of the Estate of Bradford, 2023 WL 7228186 (Fla. 5th DCA 2023), in analyzing case law with respect to this issue, answered this issue in the negative: a company’s internal policy’s do not alone create duties owed to third parties. In this case, a retail tire company was...

20 August

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Venue Considerations when Challenging Venue

Posted by David Adelstein

in Appeal, Trial Perspectives

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...

11 June

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Draft Agreements with Clarity or…

Posted by David Adelstein

in Appeal

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...

28 May

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Appellate Court Reversing Trial Court Granting Motion for New Trial

Posted by David Adelstein

in Appeal, Standard of Review

There are times a trial court may grant a motion for a new trial after the jury's verdict. Naturally, the party that received the benefit of the jury's verdict will appeal the trial court's ruling granting the motion for a new trial. A good example can be found in Smith v. Lyles, 48 Fla.L.Weekly D1079a (Fla. 6th DCA 2023), a personal injury case, where the trial court granted a new trial in favor of the plaintiff after the jury found the defendant was not liable. The trial court granted the new trial because it found: (a) the defendant had improper testimony;...

21 May

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Measure of Tort Damages in Civil Disputes

Posted by David Adelstein

in Appeal, Trial Perspectives

If you are filing a civil action, your case is generally about, and should generally be about, recovering damages. Sure, there may be exceptions where a party is seeking injunctive relief or a declaration, but mostly, civil disputes concern a party seeking monetary damages. When it comes to civil tort actions, remember this when it comes to the measure of damages: “In tort actions, the measure of damages [awarded] seeks to restore the victim to the position he would be in had the wrong not been committed.” Hollywood Imports Limited, Inc. v. Nationwide Financial Services, LLC, 48 Fla.L.Weekly D915a (Fla. 4th...

07 May

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Have the Trial Court Rule on a Motion BEFORE the Court Loses Jurisdiction

Posted by David Adelstein

in Appeal

In a recent construction posting that I posted here, it discusses when a trial court loses jurisdiction. This is a worthy consideration because in this case the trial court no longer had jurisdiction to rule on a motion after the final judgment was entered and the time for a rehearing and appeal expired. Here are the key takeaways from the case: (1) "The general rule is that an action remains pending in the trial court until after a final judgment and such time as an appeal is taken or time for an appeal expires. By the time the trial court had ruled...

05 February

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Word to the Wise: File Your Notice of Appeal TIMELY

Posted by David Adelstein

in Appeal

Here is a recent case that is really more about a word to the wise. “[A] motion for rehearing directed to a non-final order…is not authorized under the rules and does not toll the time for filing the notice of appeal.” Omni Healthcare, Inc. v. North Brevard County Hospital District, 48 Fla. L. Weekly D257b (Fla. 5th DCA 2023). This means filing a motion for rehearing based on a non-final order does NOT toll the time for you the timely preserve your appellate rights by filing a notice of appeal. This case involved a commercial eviction dispute where the commercial tenant...

14 January

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Equitable Relief: One seeking Equity MUST do Equity

Posted by David Adelstein

in Appeal, Trial Perspectives

How about this longstanding maxim: “One maxim of equity is that a litigant going into equity must go with clean hands, and another is that he who seeks equity must do equity.” Davis v. Verandah at Lake Grady Homeowners Association, Inc., 48 Fla.L.Weekly D142a (Fla. 2d DCA 2022) quoting Engebretsen v. Engebretsen, 11 So.2d 322, 329 (Fla. 1942). When you read it, it is hard to disagree with it, right? It just makes sense. In Davis, the 2007 plat for a subdivision was recorded by a developer. The developer subsequently advertised its subdivision as a deed-restricted community. The plaintiffs were interested...

05 November

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Writ of Prohibition to Prevent Trial Court from Exceeding Jurisdiction

Posted by David Adelstein

in Appeal

A writ of “[p]rohibition lies to prevent a court from acting in excess of its jurisdiction.” Allstate Fire and Casualty Ins. Co. v. Hoffman, 2022 WL 14681489, *1 (Fla. 4th DCA 2022). An example of an appellate court granting a writ of prohibition can be found in Allstate Fire and Casualty Insurance Company. As an important backdrop, Florida Rule of Civil Procedure 1.530 governs motions for rehearing. A motion for rehearing “must be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.” Fla.R.Civ.P....