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VENUE PRIVILEGE
Castle Beach
Club Condo., Inc. v. Citizens Prop. Ins. Corp., 2012 Fla. App. LEXIS 12354
(Fla. 3d DCA Aug. 1, 2012) affirmed the trial court’s order
transferring the case to Tallahassee based on the home venue privilege. The court held that Citizens is a state
entity protected by the privilege recognized under Florida common law. As stated in Carlisle v. Game & Fresh Water Fish Comm’n,
354 So. 2d 362, 364 (Fla. 1977) the “rule promotes orderly and uniform
handling of state litigation and helps to minimize expenditure of public funds
and manpower.” But even where none of
the policy reasons exist for applying the privilege, the courts nevertheless enforce
it. See Juan Ramirez, Jr., Florida Civil Procedure, § 4-6, at p.
4-20 (2d. ed. 1997).
ARBITRATION
Am. Fed'n. of State v. Miami-Dade County Pub. Sch., 2012
Fla. App. LEXIS 12356 (Fla. 3d DCA Aug. 1, 2012) held that where a
mutual mistake exists between the parties to an agreement, reformation of that
agreement does not constitute a modification so as to cause the arbitrator to exceed
his jurisdiction.
INJUNCTION
DePuy
Orthopaedics, Inc. v. Waxman, --- So. 3d --- (Fla. 1st DCA August 3, 2012)
held, by a divided court, that the employer could obtain an injunction against
its former employee pursuant to an assignment of a contract containing a
non-compete clause.
JUDICIAL ESTOPPEL
Zakhary v.
Raymond Thompson PSM, Inc., 2012 Fla. App. LEXIS 12517 (Fla. 2d DCA Aug. 1,
2012) reversing summary judgment because judicial estoppel is only
applicable when a party takes a position that is inconsistent with a position
taken in a separate judicial proceeding. Equitable estoppel was also
inapplicable because plaintiffs had made no representations contrary to the
position currently asserted.
INSURANCE CLAIM
Leben v. State Farm Fla. Ins. Co., 2012 Fla. App. LEXIS
12522 (Fla. 4th DCA Aug. 1, 2012) reversed summary judgment for the
insurer based on the insureds’ failure to give timely notice of the roof damage
following Hurricane Wilma until February 2009, even though they had noticed in
2005 immediately after the hurricane.
The court explained that an insured's failure to comply with an
insurance policy notice provision is not fatal to coverage. Quoting from Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla.
1985): “[i]f 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.” The record contains a question of fact as to
whether State Farm was prejudiced.
BAD FAITH FAILURE TO SETTLE
Liberty
Ins. Corp. v. Milne, 2012 Fla. App. LEXIS 12532 (Fla. 4th DCA Aug. 1, 2012)
granted a writ of prohibition to prevent the trial court from exercising
jurisdiction to allow a third-party complaint against the insurer after the
insured suffered over a $1 million judgment on a $50,000 policy. The trial Court loses
jurisdiction of a cause after a judgment has been entered and the time for motions
for rehearing or new trial have expired or been denied. The insured’s serving a third-party complaint
could not revive an underlying action that already had been concluded; any
attempt to file a crossclaim or a third-party complaint or to serve process on the
insurer was a nullity after the denial of the last motion for new trial. The insured could still pursue its claim in a
separate and independent cause of action.
A law is not a law without coercion behind it.
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