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Establishing Punitive Damages Against a Corporation

“In Florida, there are two methods for establishing a claim for punitive damages against a corporation: ‘(1) vicarious liability based on the willful and malicious actions of an employee with a finding of independent negligent conduct by the corporation; or (2) direct liability based on the willful and malicious actions of managing agents of the corporation.’" Wells Fargo Bank, N.A. v. Electronic Funds Transfer Corp., 46 Fla.L.Weekly D1824e (Fla. 5th DCA 2021) In Wells Fargo Bank, a defendant bank was being sued for punitive damages.  At the conclusion of the evidence, the defendant bank moved for a directed verdict as to the...

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Premise Liability Claims and Case Example of Slip on Uneven Floors

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...

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Ruling on a Privilege Objection

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...

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

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...

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FINANCIAL DISCOVERY FROM EXPERT WITNESSES TO SHOW BIAS

It is not uncommon for experts to work with the same law firm on numerous cases.  Does this mean an expert can be subjected to discovery to produce a list of cases and money received (financial records) from the law firm on unrelated matters to show the expert is biased?  The Third District Court of Appeals held that a party cannot pursue such documentation without a showing “of the most unusual or compelling circumstances,” a potentially challenging showing.  See Hidalgo v. Citizens Property Ins. Corp., 46 Fla.L.Weekly D1437a (Fla. 3d DCA 2021). This does not mean a party cannot seek discovery...

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Venue for Defamatory Social Media Post

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...

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The Bench Trial and Competent Substantial Evidence

In another posting, I discussed the doctrine referred to as the anticipatory repudiation of a contract.  The anticipatory repudiation of a contract amounts to a breach of the contract as a party is prospectively repudiating their obligations in the contract. However, for purposes this article, that same case explains the difficulty in overturning a judgment from a non-jury (or bench) trial.   This is because of the competent substantial evidence burden where a trial court will be affirmed if there is competent substantial evidence. If you are appealing a judgment from a bench trial, you are dealing with a harder standard or...

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Demonstrating the Difficult Burden in PIERCING the Corporate Veil

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...

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Vicarious Liability and the Going and Coming Rule

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...

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Accurate Jury Instructions are Important

Accurate jury instructions that are read to a jury are important.  This is because accurate jury instructions help a jury properly resolve issues important to the case. “A decision to give or withhold a jury instruction is reviewed for an abuse of discretion.”  Vainberg v. Avatar Property & Casualty Ins. Co., 46 Fla. L.Weekly D1141d (Fla. 4th DCA 2021). In Vainberg, the trial judge refused to give a jury instruction requested by the plaintiff.  The case involved a property insurance dispute where the insurer, pursuant to the terms of the property insurance policy, elected to perform the repairs.  After the insurer’s contractor...

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