26 July

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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...

12 July

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Work Product Document and Withholding of Documents Based on Doctrine

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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. ...

05 July

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Nature of Disclosure under Florida’s Public Whistleblower Act

Posted by David Adelstein

in Trial Perspectives

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...

22 June

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Declaratory Relief in Insurance Coverage Dispute

Posted by David Adelstein

in Trial Perspectives

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...

20 June

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Statute of Limitations Accrual for Breach of Contract

Posted by David Adelstein

in Trial Perspectives

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...

06 June

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Enforce Settlement Agreement OR Breach of Settlement Agreement

Posted by David Adelstein

in Trial Perspectives

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...

31 May

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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

Posted by David Adelstein

in Trial Perspectives

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...

25 May

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Quick Note: Obtaining a Default Final Judgment

Posted by David Adelstein

in Trial Perspectives

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,...

16 May

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Tortious Interference with Business Relationship and Two Defense Privileges

Posted by David Adelstein

in Trial Perspectives

A cause of action for tortious interference with an advantageous business relationship requires proof of four elements: (1) the existence of a business relationship under which the plaintiff has legal rights; (2) the defendant's knowledge of the relationship; (3) the defendant's intentional and unjustified interference with the relationship; and (4) damages resulting from the breach of the relationship. Weisman v. Southern Wine & Spirits of America, Inc., 45 Fla. L. Weekly D1140a (Fla. 4th DCA 2020). This tortious interference claim “teeters between two competing values—the desire to protect the reasonable expectations of the parties to a business relationship on the one hand, and the need to...

02 May

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Possible or Speculative Events do Not Give Rise to Fraudulent Nondisclosure

Posted by David Adelstein

in Trial Perspectives

To prove fraud, a plaintiff MUST prove: 1) a false statement of a material fact by the defendant; 2) the defendant had knowledge that the statement was false; 3) the defendant intended that the statement induce the plaintiff to act on it; and 4) damages by the plaintiff in relying on the defendant's statement. Pritchard v. Levin, 2020 WL 2050691, *2 (Fla. 3d DCA 2020). When a fraud claim concerns nondisclosure--a failure to disclose material information--such claim “exists only when there is a duty to make such disclosure.” Id. (citation omitted). The court determines, as a matter of law, whether a...