VENUE FOR BAD FAITH CLAIM PROPER IN COUNTY WHERE ESTATE WAS OPENED AND WHERE CLAIM WAS INVESTIGATED

American Vehicle Insurance Co. v. Goheagan, 35 Fla. L. Weekly D1171 (Fla. 4^th DCA May 26, 2010):

The underlying litigation in this bad faith case arose from a car accident in Palm Beach County where a woman was killed.  Her estate was opened in Palm Beach County.  After an excess verdict, the plaintiff filed a bad faith claim, and the insurance company sought to transfer venue to Broward County.  The insurance company asserted that the insurance company did not maintain any offices or captive agents in Palm Beach County and that its office for transaction of customary business was located in Broward. 

Plaintiff asserted that both the insured and the victim were Palm Beach County residents, that the accident occurred here, the estate was opened here, and all communications concerning adjustment of the claim occurred in Palm Beach County. 

The Fourth District reminded us that the plaintiff has the prerogative to choose the venue, and as long as it is proper as provided by statute, the court will not disturb the selection. 

While the defendant properly filed an affidavit supporting a venue change to Broward County, the plaintiff met her burden by filing an affidavit showing that most of the underlying events occurred in Palm Beach.  When a contract is one for the performance of services, a cause of action for failure to perform them accrues where it is alleged that the agreed services were supposed to be performed.  Although the physical location of the adjuster was in Broward County, the totality of the circumstances supported venue being proper in Palm Beach County.

ERROR TO ENTER SUMMARY JUDGMENT ON CLAIMS OF NEGLIGENT DESIGN AND INSTALLATION

Clark v. ODV Holding, 35 Fla. L. Weekly D1181 (Fla. 4^th DCA May 26, 2010):

Plaintiffs sued defendants for negligent design of hurricane shutters and their storage system, negligent installation of the system and failure to warn regarding the use of it.  There were disputed issues of fact as to whether the hurricane shutter storage system was negligently designed and installed, and therefore summary judgment was reversed.

However, the court affirmed summary judgment on the negligence claims based on negligent design of the shutters and negligent failure to provide adequate warnings on the storage system.  The trial court correctly concluded that the danger presented by the sharp-edge shutters was open and obvious.  The court also properly entered summary judgment on negligent warning claims, because the undisputed facts showed that the plaintiff did not read the safety warning provided, and could not establish that the alleged failure to warn proximately caused their injuries.

TRIAL COURT ERRED IN DISMISSING COMPLAINT BASED ON FAILURE TO RELATE BACK

Florez v. Riscomp Industries, 35 Fla. L. Weekly D1190 (Fla. 3^rd DCA May 26, 2010):

Plaintiff alleged that she slipped and fell at a Miami Airport terminal bathroom where defendant was hired to provide janitorial services, and filed her complaint three days before the statute ran.  Although she knew before she filed the complaint that the defendant had subcontracted its janitorial responsibilities to a different entity, plaintiff did not sue or seek to add either that entity or the employee as a defendant.  Still, she amended her complaint three times after the initial filing. 

To survive a motion to dismiss, the complaint must relate back by the claim arising out of the same conduct, transaction or occurrence.  The doctrine is to be liberally applied to achieve its ends.  The question is whether the original pleading “gives fair notice of the general fact situation out of which the claim or defense arises.”

The court said on de novo review while it found that plaintiff had changed her legal theories of breach (amended the claims to state causes of action for non-delegable duty, violation of contractual duty and negligent selection, supervision and retention), the plaintiff’s ultimate conclusion did not alter the general fact situation from which the claim arose.

The court reversed the dismissal.

DEFENDANT NOT ENTITLED TO AWARD OF PREVAILING PARTY ATTORNEY’S FEES UPON PLAINTIFF’S VOLUNTARY DISMISSAL OF DECEPTIVE AND UNFAIR TRADE PRACTICES CLAIM BECAUSE JUDGMENT WAS NOT ENTERED FOLLOWING VOLUNTARY DISMISSAL – DEFENDANT WAS ENTITLED TO AWARD BASED UPON VOLUNTARY DISMISSAL OF MISLEADING ADVERTISING CLAIM

Black Diamond Properties v. Haines, 35 Fla. L. Weekly D1197 (Fla. 5^th DCA May 28, 2010):

Section 501.2105(1) requires a final judgment and an exhaustion of appeals before a party may get prevailing party attorney’s fees.  However, fees are appropriate after voluntary dismissals in general, when there is nothing specifically stating that a judgment needs to be entered as a condition precedent.

TRIAL COURT PROPERLY DISMISSED COMPLAINT FOR NEGLIGENT HIRING AND RETENTION WHEN PLAINTIFF FAILED TO ALLEGE SUFFICIENT NEXUS BETWEEN EMPLOYMENT AND PLAINTIFF, TO SUPPORT A DUTY OWED

McGill v. Bartlett Towing, 35 Fla. L. Weekly D1200 (Fla. 5^th DCA May 28, 2010):

Plaintiff alleged that she suffered personal injury when a towing company employee violently pushed her to the ground immediately before stealing her car.  At the time of the attack, though, the plaintiff was not seeking any towing services.  The complaint did not allege that the attack occurred on the towing company’s premises, nor did the employee meet the plaintiff as a direct consequence of his employment.  Further, there was no allegation that the company would have received a benefit from the meeting of the employee and the plaintiff had the wrongful act not occurred.  The employee had not been dispatched to the plaintiff’s location nor was she in need of tow truck service.

Because the amended complaint failed to allege a sufficient nexus between the offending employee and the plaintiff to support a legal duty owed to hire and retain non-dangerous employees, the trial court properly dismissed the complaint.  Without a legal duty to a particular plaintiff to exercise reasonable care in hiring and retaining safe and competent employees, a plaintiff cannot state a cause of action. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

This entry was posted on Monday, June 14th, 2010 at 10:16 am and is filed under The Week in Torts. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.