Saturday, August 4, 2012

New Decisions from our Florida Appellate Courts


Castle Beach Club Condo., Inc. v. Citizens Prop. Ins. Corp., 2012 Fla. App. LEXIS 12354 (Fla. 3d DCA Aug. 1, 2012) affirmed the trial court’s order transferring the case to Tallahassee based on the home venue privilege.  The court held that Citizens is a state entity protected by the privilege recognized under Florida common law.  As stated in Carlisle v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362, 364 (Fla. 1977) the “rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.”  But even where none of the policy reasons exist for applying the privilege, the courts nevertheless enforce it.  See Juan Ramirez, Jr., Florida Civil Procedure, § 4-6, at p. 4-20 (2d. ed. 1997).


Am. Fed'n. of State v. Miami-Dade County Pub. Sch., 2012 Fla. App. LEXIS 12356 (Fla. 3d DCA Aug. 1, 2012) held that where a mutual mistake exists between the parties to an agreement, reformation of that agreement does not constitute a modification so as to cause the arbitrator to exceed his jurisdiction.


DePuy Orthopaedics, Inc. v. Waxman, --- So. 3d --- (Fla. 1st DCA August 3, 2012) held, by a divided court, that the employer could obtain an injunction against its former employee pursuant to an assignment of a contract containing a non-compete clause.


Zakhary v. Raymond Thompson PSM, Inc., 2012 Fla. App. LEXIS 12517 (Fla. 2d DCA Aug. 1, 2012) reversing summary judgment because judicial estoppel is only applicable when a party takes a position that is inconsistent with a position taken in a separate judicial proceeding. Equitable estoppel was also inapplicable because plaintiffs had made no representations contrary to the position currently asserted.


Leben v. State Farm Fla. Ins. Co., 2012 Fla. App. LEXIS 12522 (Fla. 4th DCA Aug. 1, 2012) reversed summary judgment for the insurer based on the insureds’ failure to give timely notice of the roof damage following Hurricane Wilma until February 2009, even though they had noticed in 2005 immediately after the hurricane.  The court explained that an insured's failure to comply with an insurance policy notice provision is not fatal to coverage.  Quoting from Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985): “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.”  The record contains a question of fact as to whether State Farm was prejudiced.


Liberty Ins. Corp. v. Milne, 2012 Fla. App. LEXIS 12532 (Fla. 4th DCA Aug. 1, 2012) granted a writ of prohibition to prevent the trial court from exercising jurisdiction to allow a third-party complaint against the insurer after the insured suffered over a $1 million judgment on a $50,000 policy.  The trial Court loses jurisdiction of a cause after a judgment has been entered and the time for motions for rehearing or new trial have expired or been denied.  The insured’s serving a third-party complaint could not revive an underlying action that already had been concluded; any attempt to file a crossclaim or a third-party complaint or to serve process on the insurer was a nullity after the denial of the last motion for new trial.  The insured could still pursue its claim in a separate and independent cause of action.