Significant Appellate Decisions

Here is a sampling of reported appellate decisions that were significant both as victories for our clients and as developments in Florida law:

Insurance

United Auto. Ins. Co. v. Cent. Therapy Ctr.,2022 Fla. App. LEXIS 4582 (Fla. 3d DCA Jul 06, 2022) (grant of summary judgment in favor of the assignee was proper under § 627.730 et seq., Fla. Stat., because, where an insurer agreed that treatments were medically reasonable and necessary, a failure to comply with the record keeping requirements governing the licensing of chiropractors was not a basis to refuse to compensate the claim).
Sacramento v. Citizens Prop. Ins. Corp., 2022 Fla. App. LEXIS 4292, (Fla. 3d DCA Jun 22, 2022) (trial court’s summary judgment ruling in favor of an insurer in its insured’s action against it was premature because the insurer moved for summary judgment while discovery pertaining to key issues was pending, specifically, a pending and noticed deposition that would potentially shed light on the causation issue central to the outcome of the case).
CEDA Health of HIalheah, LLC v. State Farm Mut. Auto. Ins. Co., 328 So. 3d 1061 (Fla. 3d DCA 2021) (grant of summary judgment was improper because there remained a genuine issue of material fact as to the manner and method in which the billing error occurred, particularly whether the health company knowingly submitted the erroneous billing under § 627.732(10), Fla. Stat.).
Perez v. Safepoint Ins. Co., 299 So. 3d 1087 (Fla. 3d DCA 2019) (final order of dismissal of lawsuit against insurer, which concluded that insured had perpetrated a fraud on the circuit court, could not stand because, where insured’s attorneys were the source of numerous matters for her affidavit, the lesser sanction of striking the insured’s affidavit ought to have been specifically addressed and ruled upon).
Bryant v. Geovera Specialty Ins. Co., 271 So. 3d 1013 (Fla. 4th DCA 2019) (property insurer partially denied coverage for the insureds’ home pipe leak by denying coverage above the $1,000 leakage sublimit and the $5,000 mold sublimit; after the insureds filed suit, the insurer’s payment of an appraisal award of $37,563 constituted a confession of judgment for purposes of plaintiff’s fee entitlement under § 626.9373, Fla. Stat.).
Vento v. Balboa Ins. Co., 261 So. 2d 576 (Fla. 3d DCA 2018) (trial court abused its discretion by dismissing, with prejudice, insured’s amended complaint because, inter alia, there was no evidence that defects in second amended complaint were due to willful noncompliance or deliberate disregard of a court order, the insured’s attorney had not been previously sanctioned, and the insurer suffered no prejudice).

Lloyds Underwriters v. Keystone Equip. Fin. Corp., 25 So. 2d 89 (Fla. 4th DCA 2009) (insurer equitably estopped from denying coverage for theft loss of vehicle based on insured’s alleged breach of garage warranty that was not disclosed to insured before loss, which occurred during binder period before policy was issued).

Southern Group Indem., Inc. v. Humanitary Health Care, Inc., 975 So. 2d 1247 (Fla. 3d DCA 2008) (PIP insurer is not statutorily required to produce PIP payout sheet presuit).

Lee v. Sec. Nat’l Ins. Co., 943 So. 2d 887 (Fla. 4th DCA 2006) (insurer’s tender of policy limits within 60 days after civil remedy notice, after suit was filed and before excess judgment entered, did not extinguish third-party bad faith insurance claim).

U.S. Security Ins. Co. v. Figueroa, 917 So. 2d 901 (Fla. 3d DCA 2006) (insurance “three-option letter” statute did not require insurer to return unearned premium when cancelling policy).

Regis v. Miami Mgmt., 902 So. 2d 966 (Fla. 4th DCA 2005) (error to dismiss subrogation action based on factual determination of whether homeowner’s association was acting as a “real estate manager” within meaning of liability policy).

Larusso v. Garner, 888 So. 2d 712 (Fla. 4th DCA 2005) (denial of Uninsured Motorist coverage based on signed statutory UM rejection form).

Sanz v. U.S. Security Ins. Co., 328 F. 3d 1314 (11th Cir. 2003) (proof of loss and estoppel under a flood insurance policy).

U.S. Security Ins. Co. v. Cahuasqui, 760 So. 2d 1101 (Fla. 3d DCA 2000) (landmark decision holding offer of judgment statute applies in PIP insurance cases; subsequently approved by Florida Supreme Court).

Silva v. U.S. Security Ins. Co., 734 So. 2d 429 (Fla. 3d DCA 1999) (law of the case doctrine bars consideration of questions impliedly presented to and decided by previous appellate court).

U.S. Security Ins. Co. v. Silva, 693 So. 2d 593 (Fla. 3d DCA 1997) (seminal decision holding insured’s failure to submit to independent medical examination relieved insurer of obligation for subsequent payment of personal injury protection benefits).

U.S. Security Ins. Co. v. Magnetic Imaging Sys., 678 So. 2d 872 (Fla. 3d DCA 1996) (mandatory statutory arbitration provision automatically incorporated into insurance policy even if policy is silent regarding arbitration).

Glenney v. Service Ins. Co.. 660 So. 2d 1132 (Fla. 4th DCA 1995) (insurer effectively cancelled auto policy by mailing cancellation notice to insureds, who could not show they did not receive the notice).

Golden Door Jewelry Creations v. Lloyds Underwriters, 8 F. 3d 760 (11th Cir. 1993) (reformation of jeweler’s block policy).

Personal Injuries/Negligence/Malpractice/Torts

Aquachile, Inc. v. Williams, 332 So. 3d 532 (Fla. 4th DCA 2021) (Himalaya clause did not apply to defendant as it did not reflect a clear intent to extend the cruise ship company’s rights and defenses under ticket contract to parties like defendant who was not a direct supplier of the company as the fish, which was allegedly sourced by defendant, was sold at least one other time before it reached the company).

Passport Leasing Corp. v. Zimmerman, 945 So. 2d 660 (Fla. 4th DCA 2007) (enforcement of settlement agreement between plaintiffs and defendant leasing company notwithstanding missing term).

Steinberg v. Kearns, 907 So. 2d 691 (Fla. 4th DCA 2005) (error to dismiss complaint due to expiration of statute of limitations, involving consideration of relation-back doctrine).

Pascual v. Fla. Power & Light Co., 911 So. 2d 152 (Fla. 3d DCA 2005) (error to dismiss wrongful death complaint alleging utility’s breach of duty to repair and warn of failed traffic signal).

Labaton v. Mellert, 772 So. 2d 622 (Fla. 4th DCA 2001) (affirming award of attorney’s fees in slip and fall case, rejecting argument fees were excessive).

Holderbaum v. ITCO Holding Co., 753 So. 2d 699 (Fla. 3d DCA 2000) (holding employer’s failure to stop employee from murdering co-worker did not fall within the intentional tort exception to worker’s compensation immunity).

Tormey v. Trout, 748 So. 2d 303 (Fla. 4th DCA 1999) (improper to cross-examine medical expert on past disciplinary proceedings, although error held to be harmless).

Sparkes v. Barnes, 755 So. 2d 718 (Fla. 2d DCA 2000) (important decision holding non-party insurer, although real party in interest, was not liable for fees under offer of judgment rule and statute that required settlement proposal to be served on party).

Feltzin v. Bernard, 719 So. 2d 315 (Fla. 3d DCA 1998) (same as Sparkessupra).

Castillo v. Huell, 675 So. 2d 180 (Fla. 3d DCA 1996) (application of worker’s compensation immunity for accident occurring while employee traveling between two work sites).

Cohen v. Richter, 667 So. 2d 899 (Fla. 4th DCA 1996) (doctor not entitled to setoff for non-economic damages, but entitled to setoff for economic damages in medical malpractice case).

LeJeune v. Aiken, 624 So. 2d 788 (Fla. 3d DCA 1993) (groundbreaking decision on discovery of medical experts in negligence case that led to amendment of rules of civil procedure).

Commercial/Contracts

New Life Rehab Med. Ctr. v. Mercury Ins. Co., 326 So. 3d 1178 (Fla. 3d DCA 2021) (holding that section 607.1622, Florida Statutes, “does not preclude a corporation that has been administratively dissolved for failing to file an annual report from prosecuting or defending against an action in order to wind up its business and affairs.”).

BNP Paribas v. Wynne, 944 So. 2d 1004 (Fla. 4th DCA 2007) (corporation’s claim for unliquidated damages could not support issuance of writ of prejudgment garnishment).

Gevertz v. Gevertz, 608 So. 2d 129 (Fla. 3d DCA 1992) (trial court erred in rewriting interest rate provision in mortgage and promissory note and in awarding excessive fees to mortgagee in foreclosure suit).

Whistleblower

Allen v. Fla. Int’l Univ., 981 So. 2d 1286 (Fla. 3d DCA 2008) (interpretation of statutory limitations period for filing claims under Florida’s public sector Whistle-Blower Act, holding FIU is a “state agency” within meaning of statute).

Traffic Offenses

State v. Sade, 11 Fla. L. Weekly Supp. 1110a (Fla. Broward Cty. Ct., Traffic Div. 2004) (not an appellate decision, but an opinion authored by Mr. Pakula as a Broward County Traffic Magistrate; a rare published decision on application of consular immunity in traffic infraction cases, holding that consular officials, unlike diplomatic agents, can be prosecuted for a traffic infraction that does not constitute an act performed in the exercise of consular functions, and that 28 USC 1351 does not bar state court jurisdiction over matters in which official acts immunity does not apply).