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RECENT RELEASES - FLORIDA CIRCUIT AND COUNTY COURTS

MUNICIPAL CORPORATIONS -- TORTS -- BATTERY -- IMMUNITY -- STAND YOUR GROUND LAW. A circuit court judge ruled that a city was entitled to immunity under the Stand Your Ground Law in a personal injury action alleging that city police officers battered the plaintiffs where the evidence established that one plaintiff punched an officer in the face during the course of a lawful arrest, and the officer's response of punching that plaintiff and using force to take him to the ground were a reasonable defense to the imminent use of unlawful force. Although the evidence established that neither officer touched or struck the second plaintiff, they would have been justified in doing so when that plaintiff lunged onto an officer's back in an effort to prevent an arrest.
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WRONGFUL DEATH -- PREMISES LIABILITY -- EXPOSURE TO ASBESTOS. The estate of a deceased race car mechanic brought suit against the owner of an automobile racing facility based on allegations that the decedent was exposed to asbestos-containing dust in vehicle brakes. The circuit court dismissed the second amended complaint, finding that the plaintiff's conclusory allegation that the owner of the racing facilities actively controlled and/or influenced the manner in which the decedent or other race car mechanics performed work on vehicles at the facilities did not meet the pleading requirements of Florida law because there was no allegation that the owner instructed or directed the decedent or other mechanics how to perform brake work, distributed asbestos-containing brakes to the mechanics, or in any other way had any involvement with the alleged asbestos-containing brakes that race car drivers allegedly used and worked with on the premises. The court also held that the second amended sworn information form filed by the plaintiff pursuant to the Asbestos and Silica Fairness Compensation Act did not meet the specific requirements of the Act where the plaintiff identified herself and her mother as index persons who could testify as to the asbestos-containing products decedent worked with or was exposed to along with the time period and locations of such exposure, but both plaintiff and her mother testified in their deposition testimony that they had no knowledge of this information. The court granted a motion to strike this sworn information with leave to amend.
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ATTORNEY'S FEES -- ESTATES. The circuit court ruled that an attorney who had entered into a retainer agreement with the decedent prior to her death was legally prohibited from foreclosing his lien on the decedent's homestead property to satisfy a purported debt arising from his legal services. With respect to the attorney's claim of breach of contract, there was no undisputed evidence establishing the amount of the fees purportedly still owed to the attorney by the client's estate, whether the retainer agreement was, in fact, breached, and whether the attorney was entitled to seek attorney's fees beyond those explicitly claimed as part of the settlement of the underlying litigation. The court granted summary judgment in favor of the defendant on the lien foreclosure count and denied summary judgment on the count alleging breach of contract.
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PUBLIC RECORDS -- MUNICIPAL CORPORATIONS. A city unlawfully refused to permit public records to be inspected or copied when it failed to conduct a timely, good-faith search for the records requested; misrepresented that all responsive records had been located and produced; failed to maintain electronic communications in a manner that prevented their accidental destruction or deletion by individual city officials; and failed to produce public records responsive to the request until threatened with litigation and ordered by the court to conduct a proper search. The court directed the municipal defendants to require all city officials or employees who use electronic devices to communicate regarding matters of official business to conduct those communications only on devices that record those communications on servers directly accessible by the city's public records custodians and further directed the defendants to search for all responsive electronic communications at the time public records requests are made.
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INSURANCE -- AUTOMOBILE -- WINDSHIELD REPAIR OR REPLACEMENT -- APPRAISAL. In a case of first impression, a county court judge ruled that an appraisal clause in an automobile insurance policy's comprehensive coverage provisions amounted to a de facto deductible and was unenforceable as being in violation of Section 627.7288, Florida Statutes. The appraisal provision at issue allowed either party to demand an appraisal if there was a disagreement as to the amount of loss and required that each party select and pay for its own "impartial" appraiser, to bear one-half of the expenses of a third "umpire" appraiser if necessary, and to share equally in any expenses of the appraisal process. The court ruled that "[t]he imposition of these extra-contractual expenses upon an insured for claims of windshield damage place this application of the appraisal provision in direct conflict with section 627.7288, which clearly provides that the full payment of windshield repair and/or replacement be borne by the insurer.
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