Monday, July 30, 2012

New Opinions


Zirkelbach Constr. v. Rajan, 2012 Fla. App. LEXIS 12200 (Fla. 2d DCA July 27, 2012) revisits the conflict between the Fourth District Court of Appeal and all the other districts regarding work product.  All of the district courts hold generally that the work product privilege attaches to statements and materials prepared by a party’s investigator or insurer in anticipation of litigation.  The district courts differ concerning the meaning of “prepared in anticipation of litigation.”  In the Fourth District, materials do not constitute protected work product unless they were prepared when the probability of litigation was “substantial and imminent.”  The other districts apply a less stringent foreseeability standard where materials such as these may qualify as work product even if no specific litigation was pending at the time the materials were compiled. Thus, even preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim.  To date, the Supreme Court of Florida has not resolved the conflict among the district courts on this issue.,%202012/2D11-3813.pdf


Althouse v. Palm Beach County Sheriff's Office, 2012 Fla. App. LEXIS 12109 (Fla. 4th DCA July 25, 2012) explained that the issue of entitlement to fees and costs under F.S. §119.12 depends on whether the agency’s refusal was lawful, which in turn hinges on whether the public entity had a “reasonable” or “good faith” belief in the soundness of its position in refusing production.


Soronson v. State Farm Fla. Ins. Co., 2012 Fla. App. LEXIS 12100 (Fla. 4th DCA July 25, 2012) affirmed summary judgment for the insurer where the insureds gave notice of their claim three years after the hurricane instead of complying with the policy.  The court agreed with the insurer that the policy provisions requiring the insureds to give notice of the loss and submit a sworn proof of loss within 60 days of the loss were conditions precedent to suit, and not a breach of cooperation clauses, and that the delayed discovery rule did not apply.  The untimely notice is presumed to have prejudiced the insurer. Thus, the burden shifted to the insureds to show that the insurer was not prejudiced.  Here, the insureds failed to come forward with sufficient counter evidence to reveal a genuine issue of material fact.

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