In Re: Amendments to the Florida Rules of Judicial
Administration, --- So. 3d --- (Fla. June 21, 2012) adopted Florida Rule of Judicial Administration 2.516
(Service of Pleadings and Papers) to provide that all documents required or
permitted to be served on another party must be served by e-mail. Under
subdivision (b)(1) (Service by Electronic Mail (―e-mail‖)), upon appearing in a
proceeding a lawyer must designate a primary e-mail address, and may designate
up to two secondary e-mail addresses, for receiving service. Thereafter,
service on the lawyer must be made by e-mail. The rule does permit several
limited exceptions to this requirement. A lawyer may file a motion to be
excused from e-mail service, demonstrating that he or she [is living in the
stone age and] has no e-mail account and lacks access to the Internet at the
lawyer’s office. Similarly, individuals who are not represented by an attorney
may designate an e-mail address for service if they wish; however, pro se
litigants are not required to use e-mail service.
E-FILING
In Re: Amendments to the Florida Rules of Civil Procedure,
--- So. 3d --- (Fla. June 21, 2012) approved Florida Rules of Judicial
Administration 2.520 (Documents) and 2.525 (Electronic Filing), both governing
the filing of any document that is a “court record.” Rule 2.520 provides in general terms that all documents filed
in any court shall be filed by electronic transmission in accordance with rule
2.525. Exceptions are recognized for
circuits where the clerk does not have the ability to accept and retain
documents by electronic filing, pro se litigants and attorneys exempted from
e-mail service. Also exempted are evidentiary
exhibits or nondocumentary materials, documents in excess of 25 megabytes [may
include some of Judge Rothenberg’s opinions, see below], when the document is
filed in open court, or when a court determines that justice so requires.
ASBESTOS
Union
Carbide Corp. v. Aubin, 2012 Fla. App. LEXIS 9848 (Fla. 3d DCA June 20, 2012) is
another comprehensive (32 pages) opinion by Judge Rothenberg erasing a $6.6 million
verdict in this asbestos-related claim after concluding that the plaintiff
failed to present any evidence demonstrating that the defective design of
Calidria Asbestos caused plaintiff’s harm and because the trial court gave
erroneous jury instructions. The trial
court was reversed for following a Fourth District opinion involving a Calidria
Asbestos claim, instead of a Third District opinion (authored by Judge
Rothenberg) involving a lawn mower. The
Aubin opinion criticizes the Fourth’s opinion as “flawed,” but does not certify
conflict.
STANDING
Beggi
v. Ocean Bank, 2012 Fla. App. LEXIS 9470 (Fla. 3d DCA June 13,
2012) dismissed for lack of standing a foreclosure appeal by an owner who
transferred his interest to an LLC in which he was the sole managing member,
but also commented that the issues raised had no merit.
INSURANCE – BAD FAITH
CLAIMS
QBE
Ins. Corp. v. Chalfonte Condo. Apt. Ass'n, 2012 Fla. LEXIS 1063 (Fla. May 31,
2012) answered the certified question that Florida law does not recognize a
claim for breach of the implied warranty of good faith and fair dealing by an
insured against its insurer based on the insurer’s failure to investigate and
assess the insured’s claim within a reasonable period of time. Such a first-party claim must be brought
under the statutory bad-faith claims of F.S. § 624.155. The court also held that the failure to
comply with statutory language and type-size requirements did not create a
private right of action against the insurer nor did it render a noncompliant
deductible void and unenforceable.
Finally, the court held that a contractual provision mandating payment
of benefits upon “entry of final judgment” does not waive the insurer’s
procedural right to post a bond pursuant to rule 9.310(b) to stay execution of
a money judgment pending resolution of the appeal.
SMOKING LITIGATION
GOOD SAMARITAN ACT
Univ.
of Fla. Bd. of Trs. v. Stone, 2012 Fla. App. LEXIS 10000 (Fla. 1st DCA June
21, 2012) reversed, in this case of first impression, a jury award of $2.8
million in damages because the trial court erred in ruling that F.S. § 768.13(2)(b), commonly known as the Good Samaritan
Act, did not apply. The statute requires
plaintiff to prove liability under a reckless disregard standard and is
applicable when the defendant renders emergency services prior to the time the
patient is stabilized.
Graney
v. Caduceus Props., 2012 Fla. App. LEXIS 10028 (Fla. 1st DCA June 21, 2012)
decided that an amendment does not relate back to the original complaint
where a third-party defendant is made a primary defendant after the statute of
limitations has run. The court stated
that an amendment will relate back (1) where the defendant knew or should have
known that the plaintiff was guilty of a misnomer as concerns the correct
identity of the defendant; or (2) where the originally named defendant is
related to the proper defendant and, through its participation in the
proceedings or otherwise, has led the plaintiff to believe the correct
defendant was sued. Here the plaintiff
could not establish either prong.
Deutsche
Bank Nat'l Trust Co. v. Waldorf, 2012 Fla. App. LEXIS 10116 (Fla. 2d DCA June
22, 2012) reversed another trial judge for dismissing with prejudice a
foreclosure action because the bank failed to provide the court with a summary
final judgment package prior to the hearing.
The trial court never considered the six factors established almost 20
years ago in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla.
1993).
BAC
Home Loan Servicing, 2012 Fla. App. LEXIS 10119 (Fla. 2d DCA June 22, 2012)
reversed the trial court for dismissing with prejudice a foreclosure
complaint because plaintiff did not properly verify its complaint in accordance
with F.S. § 92.525. As in Trucap Grantor Trust 2010-1 v. Pelt, 84 So. 3d 369, 372 (Fla. 2d
DCA 2012), “because rule 1.110(b) specifically provides for a verification
based on knowledge and belief, the generally applicable declaration in section
92.525(2) that the facts ‘are true,’ without limitation, does not control.”
Thus, the plaintiff properly used the verification language contained in the
rule. Further, there is no requirement in rule 1.110(b) that the verification
be contained within the complaint, and nothing in the rule prohibits the
verification from starting on a separate page.
DISSOLUTION OF
MARRIAGE / PARTIES
Mathes
v. Mathes, 2012 Fla. App. LEXIS 9689 (Fla. 2d DCA June 15, 2012) is a great example of how much mischief incompetent
attorneys can cause in a divorce. The
attorneys failed to make a corporation owned by the husband and the wife a
party to the dissolution action but nevertheless persuaded the trial judge to
enter numerous provisions in the final judgment affecting the corporation. Their incompetence continued in failing to
obey an order from the appellate court.
WORK PRODUCT PRIVILEGE
Heartland Express, Inc., of Iowa v. Torres, --- So.
3d ---, 2012 Fla. App. LEXIS 10150 (Fla. 1st DCA June 25, 2012) quashed a discovery order compelling the risk manager to reveal information that
could only have been obtained through its risk management investigation. The trial court was also incorrect in ruling
that an attorney cannot instruct a deponent not to answer a question. Florida Rule of Civil Procedure 1.310(c)
specifically provides for such an instruction in certain circumstances: “A
party may instruct a deponent not to answer only when necessary to preserve a
privilege.”
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