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A Farm Tractor is a Dangerous Instrumentality

In Rippy vs. Shepard(<–click for full case), the Florida Supreme Court determined that because a farm tractor is a motor vehicle and because it is of such size and character as to be peculiarly dangerous in its operation, a farm tractor is a dangerous instrumentality.

 

Middle District of Florida Affirms that Insured Not Entitled to Claim File Unless Bad Faith Claim

In Gavin’s Hardware vs. Federated Mutual Insurance (click on case name to view Order), the Middle District of Florida held that an insured is not entitled to production of the claim file, when the action is one of a breach of contract.  Despite the fact that the breach of contract action may lead to a subsequent bad faith claim, the insurance company is still able to withhold the claim file until such time.

 

 

Fourth District Awarded Attorney’s Fees against FIGA for Affirmative Denial

In Rahabi vs. Florida Insurance Guaranty Association, Inc. (click on case name for pdf version), the Fourth District Court of Appeal awarded attorney’s fees against FIGA, based upon its denial “by affirmative action” of the insureds’ claim.  Fla. Stat. 631.70.  Specifically, FIGA responded to the insureds’ complaint, alleging a breach of contract, and asserted seven affirmative defenses which stated that the insureds’ damages “[were] not caused by a covered loss.”  This was determined to be an affirmative action of denial.

Second District Addresses Landlord/Owner Liability in Negligent Security Cases

In Jones v. Basha, the Second District addressed Landlord/Owner Liability in the negligent security context.  This case involved a carjacking, which occurred in arguably an area considered to be the “Common Area.”  The court terms the parking lot, where the carjacking occurred, outside the store as “public access to the store,” as opposed to being part of the demised portions of the building that were actually purchased by the store.  Therefore, although the landlord owned the asphalt where the plaintiff was allegedly attacked, the Landlord, and/or its employees, did not venture over into the subject area, for any type of control purpose–to hold the landlord liable.

NLRB Issues New Notice Posting Requirements Effective 11/14/11

Pursuant to the National Labor Relations Board’s new notice requirement (found here), every employer, subject to the National Labor Relations Act, must conspicuously post notices to employees informing of their rights under the National Labor Relations Act.  Failing to post the required notice may be considered an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act.

Fourth District Court determines that Proposal for Settlement not Ambiguous

In Jeffrey Jones v. Publix Supermarkets, Inc., the Plaintiff filed a proposal for settlement that provided in part that “This proposal for settlement encompasses all damages and expenses associated with this claim even those damages or expenses as to which collateral source payments have been made,” and that plaintiff “will execute a full release of liability in favor of Publix Supermarkets, Inc., a Florida Corporation, and it’s [sic] affiliated insurance company, and the stipulation for voluntary dismissal.”  There was no further summary of the release included, nor was a copy of the proposed release attached to the proposal.

The trial court noted that “everybody understands was being released and who isn’t,” it ultimately concluded that it was constrained by the decision of the 4th District Court of Appeal in Papouras v. Bellsouth Telecommunications, Inc., 940 So. 2d 479 (Fla. 4th DCA 2006).  Accordingly, the trial court denied the plaintiff’s motion for fees, pursuant to his proposal for settlement, because the release was neither summarized nor attached to the proposal for settlement.

The Fourth District determined that, under these particular set of facts, the proposal for settlement was not ambiguous as this was the only claim existing between the parties, and there were no other parties remaining potentially liable–so that such other claims might not be extinguished by release.

Attorney Behavioral Issues Warranted Reversal of Trial

In Irizarry v. Moore (click for full text of case),  the Fifth District Court of Appeal determined that counsel for appellees stepped over the behavioral bounds enough times to warrant a reversal.  Specifically, this case stemmed from an automobile accident.  During Voir Dire, Counsel started using terms such as “guilty” and “innocent” to describe the injured party’s burden of proving the negligence action.  Based on several other interjections through out the three-day trial, the Court reversed the trial court’s verdict.