Alan Sadowski, Marshall
I have been informed that the Marshall of the Third District Court, Alan Sadowski, died today, the day of his birthday. Alan was a great resource to me during my two years as Chief Judge and a great human being.
THE CASES:
Royal Caribbean
Cruises, Ltd. v. Rigby, --- So.
3d --- (Fla. 3d DCA September 12, 2012) affirmed an order modifying the pretrial
maintenance and cure benefits for a seaman injured in 2006, without prejudice
to defendant seeking termination or further reduction at an evidentiary
hearing. The holding was based on the
fact that the trial court had already determined plaintiff’s entitlement to
benefits and the order had not been appealed. The dissent by Judge Shepherd opined
that the rules of appellate procedure authorize, but do not compel, a party to
appeal an interlocutory order.
Citizens
Prop. Ins. Corp. v. Ifergane, 2012 Fla. App. LEXIS 15236 (Fla. 3d DCA Sept. 12,
2012) affirmed the order dismissing the wife from an insurance claim
where she had assigned her rights to any recovery. “Post-loss insurance claims are freely assignable
without the consent of the insurer.” But
the wife was still obligated to perform the post-loss duties imposed by the
language of the policy. She can assign
her benefits but not her obligations. Her
refusal to submit to an Examination Under Oath precluded recovery. Because the parties seemed to be getting a
divorce, counsel should have obtained an order from the family court judge
making her give the EUO.
Fla.
Dep't of Agric. & Consumer Servs. v. Lopez-Brignoni, 2012 Fla. App. LEXIS
15240 (Fla. 3d DCA Sept. 12, 2012) affirmed an order certifying a class of
homeowners affected by the Citrus Canker Eradication Program. In a long dissent by Judge Rothenberg, she argues
that the majority should have reversed because the trial court used the wrong
damage methodology. The dissent then
relies Castin
v. Fla. Dep't of Agric. & Consumer Servs., 901 So. 2d 1020 (Fla. 4th DCA 2005),
a case finding no abuse of discretion in the denial of class certification
where the damages sought were “shade, aroma, blossoms and ‘other values for which
people treasure citrus in Florida.’” The
class plaintiffs here avoided precisely that problem by seeking only “replacement
cost.” Thus, it seems the dissent was changing
the goals of the class to shoot it down.
Mt. Sinai Med. Ctr. V. Gonzalez, --- So. 3d --- (Fla. 3d DCA Sept. 12, 2012) reversed
a $3 million verdict because the plaintiff did not present competent evidence
that her husband fell down the defendant’s steps, rather than on the
sidewalk. The wife’s testimony was
speculative; the engineering expert was conclusory; and the unobjected-to
hearsay “was contrary to the established historical facts.” In footnote 4, it appears the trial court had
allowed evidence of a prior slip and fall as a sanction for an alleged
discovery violation. The court said that
“there was no justification—and we have
found no authority to support—the admission of concededly otherwise
inadmissible testimony, such as this to pollute the fair determination of
issues before the jury. Thus, the punishment was way out of proportion to the
alleged offense.”
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