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Cleveland Clinic Florida Hospital v. Lamkin, 987 So.2d
814 (Fla. 2008)
This case originated as a medical malpractice case
brought by a Hospital patient who sustained injuries to her hand as a result
of a negligently administered IV by an agency nurse. The defendants sued in
this action–the Hospital (represented by the firm), the nurse, and the
agency which employed the nurse–settled with plaintiff and the Hospital
sought to recoup its settlement monies from the negligent nurse and the
agency that employed her on theories of common law and contractual
indemnity. The trial court partially granted summary judgment in favor of
the nurse and the staffing agency finding that the Hospital was not entitled
to recoup the monies it paid to settle the action.
On appeal, the Hospital argued that actual wrongdoing
or lack thereof determines indemnity rights, not what claims were pled
against the Hospital by the plaintiff. And, because there was conflicting
evidence on this point and the record contained evidence that the Hospital
bore no fault for plaintiff’s injuries, summary judgment was improper. In a
per curiam decision, the Fourth District agreed with the Hospital,
reversing the summary judgment on the common law and contractual indemnity
claims.
Essex Insurance Company v. Zota, 985 So.2d 1036 (Fla.
2008).
The Florida Supreme Court ruled in favor of the firm's
client in this case which worked its way to the United States Court of
Appeals for the Eleventh Circuit which then certified five questions of
great public importance to the Florida Supreme Court. The supreme court’s
thirty-page unanimous decision marked a significant victory on insurance
issues critical to the surplus-lines insurance industry in Florida. The
Supreme Court held, consistent with long-standing precedent, that
surplus-lines insurers are not required to deliver their policies directly
to the insured but may do so through the insured’s independent
representative-broker.
Ozarslan v. Royal Caribbean Cruises Ltd., 2008 A.M.C.
1627 (11th Cir. [Miami-Dade] 2008)
In this state court case, a seaman sued his
employer for back and neck injuries he allegedly sustained as a result of
repetitive lifting of trays of dishes. The shipowner moved to dismiss the
seaman’s case as a fraud on the court. In his pre-employment questionnaire, the
seaman denied any prior back or knee problems and any medical treatment for such
conditions. The seaman’s wife (divorce proceedings were pending) testified that
her husband had been wanting to “set up” a worker’s compensation claim. Medical
records showed that the seaman had been treated on at least three occasions for
the same back problems for which he was seeking recovery in the case over a
three-year period prior to his current employment. The seaman was also
previously diagnosed with a herniated disc and sciatica and instructed to avoid
bending and lifting. The seaman was redeposed knowing his wife’s testimony but
continued to deny prior accidents or injuries or medical treatment to his back
or knee.
The trial court granted the motion to dismiss, finding that “Plaintiff
intentionally and fraudulently concealed the existence of his prior back and
knee problems, lied in his discovery responses and that this deception went to
the heart of the Plaintiff’s claim in this case, which was based on the
contention that these back and knee injuries instead resulted from his
employment.”
Awadallah v. Singer,
950 So. 2d 1250 (Table) (Fla. 4th DCA 2007).
This appeal arises
out of the trial court’s entry of summary judgment in favor of our
client, Defendants, Jay R. Singer, D.D.S, and his professional
association, Jay R. Singer, D.D.S., P.A. based on the lack of record proof
of causation between Plaintiff’s alleged injuries and any alleged breach of
duty of care on the part of Dr. Singer.
On appeal, Plaintiff contended that the expert affidavits she presented for
the first time on rehearing should have been considered by the trial court.
She also claimed that the trial court should have continued the summary
judgment hearing even though she did not file any written motion for
continuance and conducted no discovery between the filing of the motion for
summary judgment and the hearing on it which took place four months later.
The Fourth Distinct rejected Plaintiff's arguments and issued a per curiam
affirmance of the trial court's summary final judgment.
Bird v. Celebrity Cruise Line, Inc., 428 F. Supp. 2d
1275 (S.D. Fla. 2005)
In this federal district court case, a cruise line passenger sued the firm’s
client, a cruise line operator, for negligence, implied warranty of
merchantability, and strict liability as an alleged result of food poisoning on
board. The cruise line moved to dismiss the warranty and strict liability claims
for failure to state a claim. The district court granted the motion finding
first that a cause of action for breach of implied warranty of merchantability
does not exist under admiralty law and would not be implied into the cruise ship
ticket contract in favor of a passenger based on food poisoning. The district
court also found that a cruise line operator cannot be held strictly liable for
food poisoning under admiralty law.
Gabriel v. Celebrity Cruises, Inc., 2005 A.M.C. 1617
(S.D. Fla. 2005)
In this federal district court case, the firm, on behalf of Celebrity Cruises,
moved to dismiss a seaman’s claims for negligent medical treatment under the
Jones Act and maintenance and cure. The district court found that the claims
were time-barred since they were first pled in an amended complaint filed more
than three years after the accident. (To maintain a cause of action under the
Jones Act or under general maritime law, the claim must be brought within three
years from the date the cause of action accrued). The amended complaint did not
relate back to the filing of the original complaint since the new claims arose
from the defendant’s post-accident conduct. The original complaint which alleged
an unsafe working environment concerned pre-accident conduct.
Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005).
The
firm participated in this case as amicus curiae or a "friend of the court" on
behalf of the Florida Defense Lawyers Association and The United States Tour
Operators Association. The Florida Supreme Court held that an arbitration
agreement incorporated into a commercial travel contract entered into by a
mother on behalf of a minor child was enforceable against the minor and the
minor’s estate in a tort action arising from the contract.
Lee v. Simon, 885 So. 2d 939 (Fla. 4th
DCA 2004).
In this
medical malpractice case which examined when the medical malpractice statute of
limitations begins to run, the appellate court agreed a defendant doctor was
entitled to summary judgment because the statute of limitations began to run
when the decedent died, even though the estate’s representative failed to
discover the exact identity of the doctor who gave the order to admit the
decedent to the hospital. To be more precise, the plaintiff’s attorneys assumed
that the reference to a Dr. Simon in the medical records referred to a Dr. Fred
Simon when in fact it referred to a Dr. David Simon who was never served with a
notice of intent.
Burns v. Radisson Seven Seas Cruises, Inc.,
867 So. 2d 1191 (Fla. 4th DCA 2004).
The
appellate court found that dismissal of a passenger’s slip-and-fall complaint
for improper venue was not error since the passenger failed to establish that
the forum selection clause on the cruise ticket was unreasonable.
Merrill Stevens Dry Dock Co. v. YII Shipping Co., 329 F.3d 809 (11th Cir.
2003).
The
appellate court upheld a trial court’s award of damages, including business
losses, to a cargo ship owner because its vessel had been damaged in a fire that
was negligently caused by shipyard employees making repairs to the vessel.
Tenet Healthsystem Hospitals, Inc. v. Taitel, 855 So. 2d 1257 (Fla. 4th DCA
2003).
The
appellate court held that a hospital was not required to produce blank forms it
used to test the competency of nurses because they constitute "the
investigations, proceedings, and records" of a medical review committee which
are protected from discovery.
Valdes v. Miami Herald Publishing Co.,
782 So. 2d 470 (Fla. 3d DCA 2001).
The
court held that because there was no evidence that newspaper vending machines at
a corner location obstructed motorists’ view of a stop sign, the newspaper
company which owned the machines was entitled to summary judgment because the
machines were not the "cause in fact" of the accident in which the motorist ran
the stop sign and struck a motorcyclist.
Mexiport, Inc. v. Frontier Communications Services, Inc., 253 F.3d 573 (11th
Cir. 2001).
In
affirming a summary judgment entered in favor of a telecommunications company,
the Eleventh Circuit held that the filing of an informal complaint with the
Federal Communications Commission precludes the same person from bringing an
action in a federal district court based on the same claim.
R/S Associates of Florida v. Bellsouth Mobility, Inc.,
778 So. 2d 1082 (Fla. 4th DCA 2001).
In
dismissing this appeal, the appellate court held that an order granting summary
judgment of one count of a complaint, where other counts against the same
parties are pending, is not authorized when the dismissed count is interrelated
with the remaining counts.
Saby v. J.C. Penney Life Insurance Co.,
769 So. 2d 1138 (Fla. 3d DCA 2000)
The
appellate court affirmed a cost judgment in favor of the defendant because the
trial court’s departure from the Statewide Uniform Guidelines for Taxation of
Costs in Civil Actions was within the trial court’s discretion.
Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000).
The
firm participated in this case as amicus curiae or a "friend of the court" on
behalf of the Florida League of Healthsystems, the Florida Hospital Association,
the Florida Medical Association, and The Association of Community Hospitals and
Health Systems of Florida. The Florida Supreme Court held that Florida’s
wrongful death statute, which prohibits adult children from recovering
non-pecuniary damages for the death of their parents due to medical malpractice,
did not violate the equal protection clause of the U.S. and Florida
Constitutions.
Zane v. Coastal Unilube, Inc., 774 So.
2d 761 (Fla. 4th DCA 2000).
In this
motor vehicle collision case, the appellate court agreed with the jury’s finding
that the plaintiff was not permanently injured from the collision. The court
also held that the defense’s expert was qualified to testify as to the
probabilities of the plaintiff suffering no injuries from a low speed accident
while wearing a seatbelt.
Liberatore v. NME Hospitals, Inc., 711 So. 2d 1364 (Fla. 4th DCA 1998).
The
appellate court found that the patient’s malpractice claim against a hospital
(for vicarious liability of a physician) was properly disposed of on summary
judgment because the plaintiff failed to produce any evidence that the defendant
physician was an agent of the hospital.
Noel v. North
Broward Hospital District, 664 So. 2d 989 (Fla. 4th
DCA 1995).
In this medical
malpractice action brought by a child’s parents against physicians who were
hired as part-time "consultants" at a health care facility operated by HRS, the
appellate court found that one of the defendant professional associations (P.A.)
was not liable for an individual physician’s alleged malpractice because the
physician was not acting in the scope of his employment for the P.A. when
the malpractice was allegedly committed. The appellate court also reversed a
summary judgment in favor of another P.A. because a genuine issue of material
fact existed as to whether sovereign immunity could extend to them.
Cohen, Scherer &
Cohen, P.A. v. Pacific Employers Insurance Co., 654
So. 2d 282 (Fla. 4th DCA 1995).
The district court
dismissed this appeal as being premature since the main claim brought by a
malpractice insurer against the insured law firm to collect a policy deductible
was still pending in the trial court and was interrelated with dismissed (and
later appealed) counterclaim.
Tuazon v. Royal Caribbean Cruises, Ltd., 641 So. 2d 417 (Fla. 3d DCA 1994).
In this
maritime action, the appellate court held that plaintiff’s counsel was properly
disqualified since he had previously worked as an adjuster who had access to
confidential information regarding the defendant cruise line.
Santa Cruz v.
Northwest Dade Community Health Center, Inc., 590 So.
2d 444 (Fla. 3d DCA 1992).
In this case which
tested the bounds of a medical facility’s liability for acts committed by an
individual being treated on an outpatient basis, the district court held that:
(1) the victims, who were not patients of the health center themselves, could
not maintain a medical malpractice action against the center; and (2) the center
owed no duty to the victims to protect them from the patient because he was not
in the center’s custody.
Coastal Unilube,
Inc. v. Smith, 598 So. 2d 200 (Fla. 4th DCA 1992).
In this injunctive
action brought by a former employer seeking to order a former employee to comply
with a covenant not to compete, the appellate court found that the injunction
should not have been dissolved based on lack of consideration because the
employee’s continued employment after executing the covenant constituted
adequate consideration.
Cruger v. Love,
599 So. 2d 111 (Fla. 1992).
In this landmark case,
the Supreme Court of Florida held that the statutory privilege regarding
investigations, proceedings, and records of medical review committees and
hospital boards protects any document considered by a committee or board as part
of its decision-making process. In furtherance of this holding, the Court found
that a physician’s application for staff privileges was a medical review
committed record protected from disclosure.
Sea-Land
Service, Inc. v. CAP International Trading Corp., 532
So. 2d 34 (Fla. 4th DCA 1988).
The appellate court
reversed a judgment in favor of a shipper which had sued an ocean carrier for
damages resulting from the late delivery of a shipment of goods. The district
court held that because the bill of lading, which contained the terms of the
parties’ agreement, was not ambiguous, that the trial court improperly permitted
the shipper to introduce other evidence as to the guaranteed arrival date of the
goods.
Valsecchi v.
Proprietors Insurance Co., 502 So. 2d 1310 (Fla. 3d
DCA 1987).
The appellate court
found that the "law of the case" doctrine–which bars reconsideration of points
of law which were, or should have been, adjudicated in a former appeal of the
same case–prevented the plaintiffs from relitigating the choice-of-law
questions.
W. J. v. State,
406 So. 2d 60 (Fla. 3d DCA 1981).
The appellate court
reversed the trial court’s finding that a juvenile was a delinquent because the
evidence did not establish that he was guilty of theft, since the victim was
unable to identify the juvenile and there was no evidence to show he committed
any act to aid in the offense.
Arkwright-Boston
Manufacturers Mutual Insurance Co. v. Dunkel, 363 So.
2d 190 (Fla. 3d DCA 1978).
In this coverage case
involving a mentally-ill brother fatally shooting his sister and wounding his
niece, the appellate court held that an allegedly insane individual does not
possess the requisite capacity to act "intentionally" within the framework of an
"intentional injury exclusion clause" thereby giving rise to coverage.
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