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...

05 May

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Mid-litigation Monetary Settlement with Co-Defendant

Posted by David Adelstein

in Trial Perspectives

I recently discussed a doctrine that applies in negligence cases known as the undertaker's doctrine. Some may also call this the no good deed goes unpunished doctrine. Just kidding; but, this undertaker's doctrine maintains that if you undertake a service, i.e., a good deed, you must do so with reasonable care as you assumed a duty to prevent the beneficiary of that service from harm. For instance, a tenant sued the owner of the condominium he (and his family) was renting and his real estate agent for water intrusion and mold problems in the unit. The tenant claimed the real...

25 March

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Set-Off when Entering into Settlements in Multi-Party Disputes

Posted by David Adelstein

in Trial Perspectives

Lawsuits oftentimes involve multiple parties. This could include multiple defendants or third-party defendants, whatever the case may be. During the course of the dispute, there are avenues for settlement. With a multi-party dispute, sometimes the stars are aligned where a favorable global settlement works out. Sometimes, a party needs to settle with some, but not all, of the defendants. This means the plaintiff will need to try the case against the remaining defendants (or parties). The remaining defendants, obviously, want the settlements with the settling defendants to be used to set-off any damages or judgment entered against them. For example,...

25 December

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How the Defense of Set-Off Applies

Posted by David Adelstein

in Evidence

Set-off is a popular topic or defense raised in civil disputes. In contract actions, set-off must be raised as an affirmative defense and proven at trial (and determined by the trier of fact) or else the defendant waives the right to assert set-off. See Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004). What about tort actions such as negligence actions in disputes involving personal injury or property damage? For instance, say a plaintiff sues three defendants in negligence for the same damage. Prior to trial, the plaintiff settled with two of the defendants for a total of $100,000 and...