ELECTRONIC FILING
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.
DELAYED
INSURANCE CLAIM / PREJUDICE
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.
CLASS ACTIONS /
SUMMARY JUDGMENT / TITLE INSURANCE
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.
SERVICE BY
PUBLICATION
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.
CLOSING ARGUMENTS / IMPEACHMENT / COSTS
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.
PERSONAL INJURY / LIABILITY OF INDEPENDENT
CONTRACTOR
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.
FORECLOSURE /
STANDING
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.
FORECLOSURE /
ATTORNEY’S FEES
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.
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.
ReplyDeleteAs 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.
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