26 September

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Declaratory Judgment / Relief Considerations

There are a number of lawsuits where a party will assert a claim for declaratory judgment/relief. This is a claim oftentimes included in insurance coverage disputes, but is also asserted in a plethora of other types of civil disputes where a party asks the trial court to issue a declaration. To be legally sufficient, a complaint for declaratory relief must allege that: (1) there is a bona fide dispute between the parties; (2) the plaintiff has a justiciable question as to the existence or nonexistence of some right, status, immunity, power or privilege, or as to some fact upon which existence of...

19 September

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Affidavit Used to Support or Defend Against Summary Judgment

Posted by David Adelstein

in Trial Perspectives

I recently discussed a case found here where the appellate court affirmed summary judgment in favor of the plaintiff finding that the affidavit proffered by the defendant did NOT create a genuine issue of material fact. A major reason the appellate court affirmed summary judgment is because an affidavit cannot be based on hearsay. The affidavit MUST be based on personal knowledge that is more than conclusory in nature and lays a factual predicate. This is important to remember when moving for summary judgment and defending against a summary judgment to ensure your affidavits are done correctly and you are...

06 September

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Calculating the Judgment Obtained in Determining Proposals for Settlement

Posted by David Adelstein

in Trial Perspectives

There are numerous prior postings discussing proposals for settlement / offers of judgment. As discussed, they create an argument to recover attorney’s fees from the date of the proposal on forward. A recent case discusses the thorny issues of determining whether the “judgment obtained” by the plaintiff meets the threshold to recover attorney’s fees when serving a proposal for settlement under Florida Statute s. 768.79. In this case, the plaintiff served a proposal for settlement on March 21, 2019. The defendant did not accept the proposal. The case proceeded to trial and the jury returned a verdict in favor of the...

08 August

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Premise Liability Claims and Case Example of Slip on Uneven Floors

Posted by David Adelstein

in Trial Perspectives

In premises liability cases, the plaintiff must show the defendant had actual or constructive notice of the dangerous condition on its premises, the defendant owed a duty to protect the plaintiff from the dangerous condition, the defendant breached that duty, there was a causal connection between the defendant's breach and the plaintiff's fall, and the plaintiff suffered damages as a result. “[A] business owner owes two ‘separate and distinct' duties to business invitees: ‘1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through...

18 July

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Ruling on a Privilege Objection

Posted by David Adelstein

in Standard of Review, Trial Perspectives

When a party receives a discovery request, the party may assert an objection under a privilege such as the attorney-client privilege or work product doctrine. If a trial court orders the production of privileged materials, the appropriate appellate mechanism is to file a petition for a writ of certiorari. Brinkmann v. Petro Welt Trading, 46 Fla.L.Weekly D1644a (Fla. 2d DCA 2021). Notably, a party is not “required to provide a privilege log when first responding to the requests for production and that the typical procedure was to hear the motion to compel and then to require a privilege log before the...

11 July

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Discussion on the Difference Between Replacement Cost Value and Fair Market Value

Posted by David Adelstein

in Trial Perspectives

This post discusses an interesting, but fairly complex decision dealing with the difference between replacement cost value and fair market value (actual cost value). The decision also discusses the set-off when suing a defendant after being paid the replacement cost value limit under the policy. In Five Solas, Inc. v. Ram Realty Services, LLC, 46 Fla.L.Weekly D1255a (Fla. 4th DCA 2021), a brick wall collapsed falling on a neighboring building damaging the building and rendering it untenantable. The owner of the building had a replacement cost value property insurance policy with a liability limit and deductible. The insurer paid the liability limit...

20 June

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Venue for Defamatory Social Media Post

Posted by David Adelstein

in Trial Perspectives

A defamatory social media post can lead to…you guessed it…a defamation claim asserted against the author of the post. Think about this the next time you post something on social media for the world to see. Once you post something on social media, there are many persons that receive and read the post. A question becomes where is the right venue to sue someone for a defamatory social media posting. The recent decision in Lowery v. McBee, 46 Fla.L.Weekly D1337b (Fla. 4th DCA 2021) answered this question. In this case, the plaintiff sued the defendant for posting a defamatory post on...

06 June

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Demonstrating the Difficult Burden in PIERCING the Corporate Veil

Posted by David Adelstein

in Trial Perspectives

Trying to pierce the corporate veil to go after principals/owners/members is extremely difficult. Although parties make a run at such arguments, this by no means diminishes the difficulty of actually prevailing on the arguments. In order to pierce the corporate a veil, a party has to prove three elements: (1) the person dominated and controlled the company to such an extent that the company had no existence independence of the person, and the company was the mere instrumentality or alter-ego of the person; (2) the person used the company’s corporate form fraudulently or for an improper purpose; and (3) the person’s fraudulent or improper...

30 May

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Vicarious Liability and the Going and Coming Rule

Posted by David Adelstein

in Trial Perspectives

When is an employer vicariously liable to a third-party for the conduct of its employees? “In Florida, an employer is vicariously liable for an employee's tortious conduct where the conduct occurs within the scope of the employment.” An employee's “[c]onduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master.” Indoneisia Peterson v. Cisco Systems, Inc., 46 Fla.L.Weekly D1248a (Fla. 2d DCA 2021) (internal citations omitted). Is an employer liable for conduct of its employees driving to and from work? The answer...

16 May

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Courts are not Here to Rewrite Bargained for Contractual Provisions

Posted by David Adelstein

in Trial Perspectives

“Courts cannot disregard agreed-upon, contractual provisions between parties. To do so would be to strike the…[contractual] obligations from the contract ‘by way of judicial fiat and the bargained-for contractual terms would be rendered surplusage.’” Peoples Trust Ins. Co. v. Amaro, 46 Fla.L.Weekly D1025a (3d DCA 2021). Courts are not here to rewrite negotiated contracts between the parties when, after-the-fact, one of the parties realizes they don’t like the terms of the contract. Doing so would be rendering certain terms or language as surplusage or unilaterally striking terms that had been bargained. Frankly, that would not be fair and defeat the very...