A PARTY’S UNSUPPORTED “BAD FEELING” ABOUT A JUROR IS NOT A SUFFICIENT EXPLANATION TO REBUT THE ASSERTION THAT THE STRIKE WAS MOTIVATED BY GENDER
Johnson v. State, 35 Fla. L. Weekly D321 (Fla. 2nd DCA February 10, 2010):
After seating an entire jury of women, the State moved to strike the last juror, who was a man. As part of the analysis, the court looked at the strike side-by-side, and found that both the defense and the State had struck several males and females (respectively).
However, the defendant alleged that the last juror belonged to a specific gender group, and requested a gender-neutral reason to support the strike. The State responded it “didn’t get a good feeling” for the juror and “had a bad feeling.” Based on the composition of the jury that had been seated, the court allowed the juror to serve.
The appellate court reversed for a new trial. It found that a party’s unsupported “bad feeling” about a juror is not a sufficient explanation to rebut the assertion that the strike was motivated by gender. It was also improper for the court to consider the overall make up of the jurors that have been seated, to determine the sufficiency of a gender-neutral reason for a peremptory strike. A gender-neutral justification cannot be inferred from the composition of the panel. Because the state’s reason was insufficient, the trial court erred in sustaining the State’s use of the peremptory strike.
A VALID REPORT UNDER §627.736(7)(a) DOES NOT REQUIRE AN INSURER TO ORDER AN IME BEFORE DENYING A CLAIM FOR PIP BENEFITS
United Automobile Insurance Co. v. Hollywood Injury Rehab Center, 35 Fla. L. Weekly D334 (Fla. 4th DCA February 10, 2010).
RULE 1.540 AUTHORIZES TRIAL COURTS TO VACATE FINAL JUDGMENTS BECAUSE OF NEGLIGENT MISTAKES BUT NOT FOR JUDGMENTAL MISTAKES OR TACTICAL ERRORS
Hermitage Insurance Co. v. Oxygen In The Grove, 35 Fla. L. Weekly D342 (Fla. 3rd DCA February 10, 2010):
Plaintiff sued a night club, for injuries he sustained at the hands of the bouncers. The club forwarded the complaint to its insurance company, demanding a defense. The company denied coverage on the basis that the complaint alleged intentional tort and assault and battery. The club resolved the dispute in voluntary binding arbitration (after hiring its own lawyer). The award expressly found the club negligent. At the plaintiff’s request, the trial court confirmed the award, and entered final judgment.
Seven months later, the plaintiff moved to amend the complaint to comport with final judgment. The plaintiff then alleged for the first time, that the club was negligent in its care and treatment of the plaintiff, and that he was struck in the face by a door when one of the bouncers opened it. The plaintiff sought leave to add the insurer as a defendant. The trial judge denied the motion but lined through the ruling stating it was withdrawn and could be renewed.
Shortly after that, plaintiff filed an unsworn motion to vacate final judgment asserting that due to inadvertence or error, the arbitration award should not have been entered because the liability carrier should have been made a party to the claim. The trial judge granted the motion, and later granted the insurer leave to intervene as a party and to file a dec action on the coverage issue. The insurer appealed the order vacating the final judgment.
The court reversed. It found that the motion to vacate was made pursuant to Rule 1.540, but that rule was not intended to spare counsel from tactical errors or mistakes. Because the judgment was not entered based on oversight, neglect or accident, the motion vacating the final judgment was reversed.
WHERE DEFENDANT DENIED PLAINTIFF’S WORKER’S COMPENSATION CLAIM ON THE BASIS THAT PLANTIFF’S CONDITION WAS NOT THE RESULT OF AN INJURY BY AN ACCIDENT ARISING OUT OF THE COURSE AND SCOPE OF EMPLOYMENT, DEFENDANT WAS ESTOPPED FROM RAISING WORK COMP DEFENSE
Masonry v. Gutierrez, 35 Fla. L. Weekly D342 (Fla. 3rd DCA February 10, 2010):
Plaintiff sought work comp benefits from his employer for injuries sustained while lifting concrete blocks. The carrier denied the claim, stating that the plaintiff’s condition was not a result of an injury by an accident arising out of the course and scope of the employment. The carrier then raised work comp immunity as an affirmative defense and moved for summary judgment on that issue. The trial court denied the summary judgment motion finding that it was not entitled to work comp immunity as a matter of law.
An employer may be equitably estopped from raising a worker’s compensation exclusivity defense, if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of her employment. It is available only when the employer attempts to take inconsistent positions, which the insurer here did.
As a result of the denial, the plaintiff dismissed his work comp claim, incurred medical expenses and filed a negligence action. Because the record establishes the elements of estoppel (representation by the party estopped to the party claiming the estoppel as to a material fact which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon the representation by the party claiming the estoppel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon), the trial court’s denial of summary judgment was affirmed.
SCHOOL NOT LIABLE FOR INJURIES SUFFERED BY A STUDENT IN AN AUTOMOBILE ACCIDENT THAT OCCURRED WHILE STUDENT WAS DRIVING CAR AFTER CONSUMING ALCOHOL AT END-OF-THE-YEAR PARTY AT A PRIVATE RESIDENCE
Archbishop Coleman F. Carroll High School v. Maynoldi, 35 Fla. L. Weekly D344 (Fla. 3rd DCA February 10, 2010):
This case involves a parochial high school’s alleged liability after a 17 year-old consumed alcohol at a private party the school knew about at the end of the year at a private residence, and was seriously injured. The party was to take place after final exams at a residence several miles away from the school. On the morning before the party, the principal talked to the two brothers at whose home the party was to take place to ask them questions. The principal also indicated he was going to attend the party, writing a skit for the students to illustrate his point.
The mother of the hosting students arrived home at the party sometime between 1:45 and 3:30, and the party began around 1. While she called her husband, neither party called the police or tried to stop the party before the injured plaintiff drove away.
The plaintiff and his friend drank in his car for almost an hour before arriving at the party, between 2 and 2:30. At 4, the principal and a school employee arrived at the party. The principal testified he wanted to personally see that things were okay and make good on his threat to visit the home. Nobody notified the police or called any parents.
Thirty to 45 minutes after the principal left, the plaintiff got in his car with his friend and drove away. His vehicle struck a tree, killing the friend and catastrophically injuring the plaintiff. He is now a quadriplegic suffering a traumatic brain injury.
The school’s parent and student handbook was admitted into evidence talking about outside parties and stating that the school would not be responsible for events not officially sanctioned by the school, though leaving room for interpretation. There was also a substance abuse policy.
At trial, the drug and alcohol defense arose. The trial judge found the affirmative defense did not apply because his parents were the plaintiffs, and the statute applied to the “plaintiff.” The court found such a statutory interpretation was absurd, and that the personal representative’s derivative claims apply with equal force to parents’ claims arising entirely from their minor child’s accident and injuries.
The court concluded by finding that no one could feel but the deepest sympathy for the tragic result of this accident. It acknowledged the school’s interception of the invitation, the skit it did in response (advising the party would be crashed) and the parent and student handbook provisions, as well as the principal’s visit to the residence while the party was underway made the case interesting. Still, the court concluded that those circumstances were insufficient as a matter of law to impose upon the school a duty to supervise or a duty under the undertaker’s doctrine regarding the plaintiff’s consumption of alcohol, attendance at the party and his fatal decision to get behind the wheel.
The court reversed and entered judgment for the school (55 million dollar verdict).
RULE 1.525 APPLIES (THE 30 DAY RULE) TO MOTIONS FOR ATTORNEY’S FEES WHEN THE TRIAL COURT HAS NOT DETERMINED ENTITLEMENT
Ramle International Corp. v. The Green’s Condominium, 35 Fla. L. Weekly D356 (Fla. 3rd DCA February 10, 2010):
Rule 1.525 does not apply when the trial court has determined an entitlement to fees in its final judgment but reserves jurisdiction only to determine the amount. In this case, the hearing was not held for 11 months but was still timely because entitlement was not in question.
WHEN PARTY IS SEEKING TO RECOVER PREVIOUSLY INCURRED ATTORNEY’S FEES AS AN ELEMENT OF DAMAGES IN A BREACH OF CONTRACT ACTION, IT IS NOT NECESSARY FOR THE PARTY TO PRESENT INDEPENDENT EXPERT TESTIMONY TO CORROBORATE THE REASONABLENESS OF THE FEES INCURRED IN THE UNDERLYING LAWSUIT
Seaworld v. Ace American Insurance Co., 35 Fla. L. Weekly D361 (Fla. 5th DCA February 12, 2010):
The Fifth District certified conflict with the Third District’s decision in Seitlin v. Phoenix Insurance Co., 650 So. 2d 624 (Fla. 3rd DCA 1994).
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