Call Us For Free Consultation


Personal Jurisdiction’s Two Prong Inquiry

If you are suing a nonresident defendant, i.e., you are NOT located in Florida, this two-step inquiry to determine whether Florida courts have personal jurisdiction over you--the nonresident defendant--is important: Florida courts conduct a two-step inquiry to determine whether a court has personal jurisdiction over a nonresident defendant. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements. The first prong -- i.e., the statutory prong -- … is governed by Florida's...

Continue reading

Take Time Crafting Your Verdict Form

Take time to properly craft YOUR special interrogatory verdict form. This is the verdict form that goes back with the jury to answer in rendering its verdict. The questions, instructions, and the order of the questions in the verdict form need to flow and make sense. In a recent property insurance coverage dispute, a jury rendered a verdict on a special interrogatory verdict form. The special interrogatory verdict form was, perhaps, not a model of perfection in asking the jury questions to answer.  In answering the verdict form, the jury answered the 5th question “yes” that the insurer established that the damage...

Continue reading

Attorney’s Fee Awards

Attorney's fee awards can be frustrating.  The reason being is the award is based on a mini-bench-trial after the trial aimed at determining reasonableness of the attorney’s fees.  An expert, i.e., another lawyer, is required to opine as to the reasonableness of the attorney’s fees.  Fees are not just rubberstamped and banking on recovering 100% of the attorney’s fees incurred is probably not realistic. In fact, you should not “bank” on that mindset when determining whether to settle the attorney’s fees or the dispute. A recent case, Kovar Law Group, PLLC v. Jordan, 49 Fla.L.Weekly D431a (Fla. 2d DCA 2024), touches...

Continue reading

Attorney’s Fees only Flow to Plaintiff-Payee in Statutory Worthless Check Claim

Florida Statute s. 68.065 is Florida’s worthless check statute – it creates a statutory cause of action against the payor of the worthless check. It further provides a statutory basis for attorney’s fees to the plaintiff-payee that prevails on the worthless check claim.  Fla.Stat. s. 68.065(6) (“Other provisions notwithstanding, the maker or drawer is liable to the payee for all attorney fees and collection costs incurred by payee as a result of the payee’s claim.”). Well, what if the payee loses and the defendant-payor prevails on the worthless check claim – does the defendant get attorney’s fees?  This was the...

Continue reading

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...

Continue reading

Introduce the Right Circumstantial Evidence for Purposes of “Admission by Party Opponent” Hearsay Exception

One of the exceptions to hearsay is known as an admission by a party opponent. In Florida, this hearsay exception is included in Florida Statute s. 90.803(18): (18) ADMISSIONS.—A statement that is offered against a party and is: (a) The party’s own statement in either an individual or a representative capacity; (b) A statement of which the party has manifested an adoption or belief in its truth; (c) A statement by a person specifically authorized by the party to make a statement concerning the subject; (d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence...

Continue reading

Incorporated Documents (such as an Addendum) Need to be Identified as Incorporated

If you have a document you want incorporated into the contract, make sure the contract specifically identifies the incorporated document.  Otherwise, that document will NOT form the basis of your contract and if that document is not executed, it will NOT affect the enforceability of your contract. By way of example, in Mercado v. Sridhar, 48 Fla.L.Weekly D2188a (Fla. 3d DCA 2023), a buyer and seller entered into a purchase-and-sale contract. The issue was an addendum relating to the seller’s furnishings and a leaseback option that was never executed.  The buyer sued the seller for specific performance when the seller refused...

Continue reading

Accord and Satisfaction requires Good Faith Conduct

The party asserting accord and satisfaction must prove that “the amount of the claim was unliquidated or subject to a bona fide dispute.” [See Florida’s Uniform Commercial Code, § 673.3111(1).]  The dispute cannot arise after the party seeking accord and satisfaction tenders the payment instrument intended to satisfy or discharge the debt.  *** The party seeking accord and satisfaction must also tender the instrument in good faith.  Because Florida caselaw regarding good faith in an accord and satisfaction context is relatively undeveloped, court decisions in other states with similar accord and satisfaction statutes are instructive.  *** “Accord and satisfaction is something that must be...

Continue reading

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

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...

Continue reading
Contact Me Now

Prove YOUR Case!


David Adelstein ♦

(954) 361-4720 ♦

[email protected]