The
decisions of my former colleagues have not been faring well lately with the
Florida Supreme Court, although this week they were batting .500, which would
be a good average for a batter.
SCOPE OF REPLACEMENT COST
INSURANCE COVERAGE
In
Trinidad
v. Fla. Peninsula Ins. Co., 2013 Fla. LEXIS 1379 (Fla. July 3, 2013), an
opinion authored by Judge Rothenberg, the Third District was quashed for
concluding that the insurance company was not required by either its
replacement cost homeowner’s insurance policy or the applicable provisions of
section 627.7011, Florida Statutes (2008), to pay its insured costs for a
general contractor’s overhead and profit because the insured did not repair or
contract to repair the damage to his home.
“Because section 627.7011, Florida Statutes (2008), and the replacement
cost policy in this case, did not require the insured to actually repair the
property as a condition precedent to the insurer's obligation to make payment,
the insurer was not authorized to withhold, pending actual repair, its payment
for replacement costs, which is measured by what it would cost the insured to
repair or replace the damaged structure on the same premises if the insured
were to do so.”
PIP / LIMITING REIMBURSEMENTS
Geico
Gen. Ins. Co. v. Virtual Imaging Servs., 2013 Fla. LEXIS 1387 (Fla. July 3,
2013) answered the certified question that, with respect to PIP policies issued
after January 1, 2008, an insurer may not limit reimburements based on the
Medicare fee schedules identified in Section 627.736(5)(a), Florida Statutes,
without providing notice in its policy of an election to use the medicare fee
schedules as the basis for calculating reimbursements. It approved
Geico Indem. Co.
v. Virtual Imaging Servs., Inc. ("
Virtual I"), 79 So. 3d
55, 58 (Fla. 3d DCA 2011) (Rothenberg, J., dissenting).
NEW RULE / ELECTRONIC DEVICES
In
Re: Amendments to the Florida Rules of Judicial Administration-Rule 2.451 (Use
of Electronic Devices), --- So. 3d --- (Fla. July 3, 2013), approves a new rule
effective October 1, 2013, defining, then directing how the presiding judge
should/must control their use by jurors and others. I believe the rule just reiterates the
general practice throughout the state.
DISCOVERY OF CORPORATE FINANCIAL RECORDS
Omes
v. Ultra Enterprises, Inc., 2013 Fla. App. LEXIS 10603 (Fla. 3d DCA July 3,
2013) (affirming the discovery ordered under F.S. § 607.1602 stating that
the statutory inspection rights of shareholders are not tantamount to a free-ranging
bill of discovery for corporate financial records, nor do they obligate a
corporation to prepare a record that does not exist, but the procedure utilized
here afforded Omes ample access to records for the purposes of valuation
expressed in his requests for corporate information. Tellingly, the exhibits
attached to the Complaint disclose that Omes' sweeping allegations against new
management and the Ultra entities' operations involve much more than a simple
request for corporate financial statements. Pre-filing discovery (to attempt to
find or substantiate shareholder claims for a later lawsuit) is not part of the
letter or spirit of the records inspection statutes.).
FAILURE TO PROSECUTE
JP
Morgan Home Fin. v. Valencia, 2013 Fla. App. LEXIS 10599 (Fla. 3d DCA July 3,
2013) reminding trial judges again that the Florida Supreme Court has held that
under the 2006 amendments to Rule 1.420(e) any filing of record within the
sixty-day grace period precludes dismissal.
Chemrock Corp. v. Tampa Elec. Co.,
71 So. 3d 786, 792 (Fla. 2011). The record reflects that JP Morgan made
multiple filings within the relevant sixty-day period, including a showing of
good cause.
DISCRIMINATION AGAINST PREGNANT WOMEN
Blanco
v. Monique & Me, 2013 Fla. App. LEXIS 10597 (Fla. 3d DCA July 3, 2013)
affirmed the dismissal with prejudice of Blanco’s action against her employers
under the Florida Civil Rights Act (FCRA), sections 760.01-11, 509.092, Florida
Statutes (2010), after her termination, alleging employment discrimination
based on pregnancy. “Because the State of Florida has not chosen to include a
prohibition against pregnancy-based discrimination under the FCRA, we
reluctantly affirm, following this Court's precedent in
Delva v. Continental
Group, Inc., 96 So. 3d 956 (Fla. 3d DCA 2012),
review granted,
[2] No.
SC12-2315 (Fla. May 2, 2013).”
SETTING FOR TRIAL / “AT ISSUE”
Lopez v. United States Bank, N.A., 2013 Fla. App.
LEXIS 10598 (Fla. 3d DCA July 3, 2013) “On appeal, U.S. Bank
properly confessed that the final judgment must be reversed as the case was not
‘at issue’ pursuant to Rule 1.440 until twenty days after service of Lopez's
answer and affirmative defenses. Moreover, U.S. Bank had not waived its right
to serve motions directed at Lopez's answer and affirmative defenses by filing
a notice of trial.
See Fla. R. Civ. P. 1.440(a).
Because
‘[f]ailure to adhere strictly to the mandates of Rule 1.440 is reversible
error,’ Precision Constructors, Inc. v. Valtec Constr. Cor., 825 So. 2d
1062, 1063 (Fla. 3d DCA 2002), we reverse the final judgment in favor of U.S.
Bank and remand for a new trial.
