Thursday, September 13, 2012

Four New Opinions from the 3d DCA and a Requiem

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.

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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