29 August

Sticky

Yes, Lawsuits are an Inconvenience, but this does NOT Mean You get Inconvenience Damages

Lawsuits are an inconvenience. They just are--no doubt about it. You have to devote time and resources, both of which you would prefer to allocate to another endeavor. However, while your time is valuable, this does NOT mean you can recover an inconvenience factor associated with your lawsuit. In a recent case, P&G Trucking of Brandon, Inc. v. Riverland Hedging & Topping, Inc., 45 Fla. L. Weekly D2023a (Fla. 4th DCA 2020), a truck struck and damaged a tractor and citrus topper. The owner of this damaged machinery sued in negligence for property damage in addition to its lost profits,...

22 August

0 Comments

Sticky

Evidentiary Hearing Warranted before Compelling Non-Signatories to Arbitration

Posted by David Adelstein

in Appeal, Trial Perspectives

With the current post-COVID-19 state of affairs with the judicial system, there is attraction to arbitrating disputes as an efficient means to dispute resolution. Arbitration is a creature of contract and is a binding method to resolve a dispute outside of the judicial system. Just because there may be an agreement to arbitrate a dispute does not mean parties will concede that their particular dispute falls within the scope of the contractual arbitration provision. A party may still prefer to litigate certain disputes and preserve the right to appeal the outcome, a right which does not exist in arbitration. There...

17 August

0 Comments

Sticky

Mutual Mistake or Unilateral Mistake in Contract

Posted by David Adelstein

in Trial Perspectives

Mistakes unfortunately happen when it comes to written agreements. When they do, a party to a written agreement may try to reform the agreement or rescind the agreement due to the mistake. Reforming or rescinding a written agreement based on a mistake is NOT as easy as it may sound simply because a party claims there was a mistake in the process. There are two types of mistakes that could support a basis to reform or rescind a contract: mutual mistake and unilateral mistake. Typically, both mistakes require a party to prove the mistake and satisfy their burden of proof justifying...

09 August

0 Comments

Sticky

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

Posted by David Adelstein

in Trial Perspectives

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...

26 July

0 Comments

Sticky

Comparative Fault Applies when Substance of the Action is Sounded in Negligence

Posted by David Adelstein

in Trial Perspectives

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

0 Comments

Sticky

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

0 Comments

Sticky

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

0 Comments

Sticky

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

0 Comments

Sticky

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

0 Comments

Sticky

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...