Saturday, June 8, 2013

New Opinions in June


Effective July 1, 2013, electronic filing of documents through the eDCA secure portal will become mandatory for attorneys.  Registration for eDCA began on June 3, 2013.  I took over technology for the court when Judge Jorgenson died in 2003, and spent many years working toward this goal.  I find it ironic that it should finally happen on the same day as Judge Shepherd takes over as chief judge.


Hope v. Citizens Prop. Ins. Corp., 2013 Fla. App. LEXIS 8891 (Fla. 3d DCA June 5, 2013) involved over a four-year delay in filing a claim resulting in summary judgment in favor of the insurer.  The court affirmed, but not on the same grounds as the trial court, which relied solely on Kroener v. Florida Insurance Guaranty Ass'n, 63 So. 3d 914 (Fla. 4th DCA 2011).  Later cases receded from and clarified Kroener, holding that if 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.  Once the presumption of prejudice is raised in favor of the insurer, the burden shifts to the insured to show that the insurer was not prejudiced by untimely pre-suit notice of loss.
On de novo review, the Third District concluded that the record did not set forth evidence sufficient to rebut the presumption.  Hope addressed the issue of prejudice in his response to the motion for summary judgment by attaching a homeowner's affidavit, a roofer's repair estimate and the public claims adjuster's report listing various repairs necessary to the roof and house structure. That evidence, however, was deemed conclusory and failed to rebut the presumption of prejudice where the passage of time rendered Citizens unable to determine exactly what current damage was directly attributable to Hurricane Wilma, and thus a covered loss.


Bleich v. Chicago Title Ins. Co., 2013 Fla. App. LEXIS 8895 (Fla. 3d DCA June 5, 2013) affirmed the summary judgment granted in a claim that the insurance company was uniformly overcharging for title insurance in mortgage refinance transactions.  Apparently when the insurer should have been charging the lower “reissue rates,” the decision allows the insurer to be willfully blind when presented with a prior policy.  Such a claim, if true, “is more properly addressed on an individual basis based on specifically pled allegations.  Crafting a statute to curb the potential abuse prophesied by the appellants is, again, the province of the legislature and not the judiciary.”
Commentary:  It is hard enough to get the Third District to affirm when the trial court certifies a class action and the standard of review is abuse of discretion. 


Castro v. Charter Club, Inc., 2013 Fla. App. LEXIS 8852 (Fla. 3d DCA June 5, 2013) reversed in a 15-page opinion by Judge Rothenberg the denial of a motion to vacate a final judgment of foreclosure where the defendants were served by publication.  Counsel for plaintiff had been in contact with defendants’ daughter and had negotiated terms to pay down the debt to the Association.  Additionally, (1) the affidavit of diligent search filed by the Association merely stated that the Castros’ “Residence [is] Unknown,” insufficient to satisfy the “particularity” requirement of F.S. § 49.041; (2) the search was not diligent because it did not reasonably employ the knowledge at its command.


Allstate Ins. Co. v. Marotta, 2013 Fla. App. LEXIS 8915 (Fla. 4th DCA June 5, 2013) reversed the denial of a motion for a new trial based on the cumulative effect of all the errors.  “It is improper for counsel to suggest in closing argument that a ‘defendant should be punished for contesting damages at trial’ or that defending a ‘claim in court’ is improper.”  Likewise, improper were comments urging the jury to punish Allstate for defending the claim in court.  In addition, the comment that there was a debt created by that uninsured motorist ran afoul of the rule that an uninsured motorist insurance carrier is entitled to raise and assert any defense that the uninsured motorist could have argued.
The court also found the cross-examination of a doctor improper as to the absence of detailed records showing the number of and payment for compulsory medical examinations performed by him for Allstate.  The doctor was not required to produce information on the specific topics referred to in the questioning.
Finally, the provision in Allstate's policy providing that costs are to be paid by the party incurring them was found unenforceable, as it would not provide the insured with the same recovery had the tortfeasor been insured to the same extent of the insured.


Sterling Fin. & Mgmt. v. Gitenis, 2013 Fla. App. LEXIS 8834 (Fla. 4th DCA June 5, 2013) reversed for the entry of a directed verdict, a personal injury action based on an injury sustained by a worker who fell off the roof. The plaintiff brought suit against the owner of a condominium conversion project, the general contractor, the independent contractor that hired him, and the property manager.  The appeal only concerned the judgment obtained against the property manager on the theory that the company directed and controlled the manner in which the plaintiff performed his work. The evidence at trial demonstrated that the property manager did not participate in the details of the work to the extent necessary to make it liable to an employee of an independent contractor for the negligence of the contractor.


Dixon v. Express Equity Lending Group, LLLP, 2013 Fla. App. LEXIS 8887 (Fla. 4th DCA June 5, 2013) explaining that although the lender’s president testified that the lender was the owner and holder of the note, the special indorsement appearing on the back of the original note suggested otherwise. Under F.S. § 673.2501(1), the special indorsement stating “pay to the order of U.S. Century Bank” established that only U.S. Century Bank had standing to bring the foreclosure action.


Vivot v. Bank of Am., 2013 Fla. App. LEXIS 9052 (Fla. 2d DCA June 7, 2013) reversed an order denying Vivot’s motion for attorney's fees in this foreclosure action that was filed by Bank of America's predecessor in interest and was dismissed for failure to prosecute. Vivot became the prevailing party when the foreclosure suit was dismissed for failure to prosecute.  He gave notice of his claim for fees in his answer and timely filed his motion for attorney's fees. Pursuant to F.S. § 57.105(7), the provisions of the note and mortgage permit Vivot to claim attorney's fees as the prevailing party.


  1. Any comment about the second dca's decision on the state's ability to force the defense to disclose the reports of experts hired for independent testing? The decision, whether technically correct or not, wrecks a defendant's ability to do independent testing. Hiring an expert now becomes a crap shoot- if the expert will help you win, if the expert confirms the state's testing you lose.

    1. As far as I know, in civil cases, there is no duty to disclose the identity of an expert nor the expert's opinions as long as the party does not intend to use the expert or the opinion. I think the 2d DCA was using the language in the criminal rules to reach a different result. Defense lawyers need to seek their remedy with the rules committee, in my view.