Thursday, July 4, 2013

Happy Fourth of July!

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. 


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.”


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).


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.


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.).


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.


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).”

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.

1 comment:

    mistake upon mistake upon mistake. what is wrong with the quality of work from lawyers lately?