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New Releases
from Florida's Circuit and County Courts

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Insurance -- Personal injury protection -- Demand letter -- Waiver -- Upon determining that insured did not send demand letter to person or address specified by insurer for receipt of demand letters, court reconsiders and reverses finding that insurer waived demand letter defense by failing to respond to demand letter -- Abatement -- PIP case is abated to allow insured to issue valid demand letter -- If insurer pays amount demanded, insured shall file voluntary dismissal and will not be entitled to attorney's fees and costs
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Statements of defendant -- Pre-Miranda statements -- Where trooper informed defendant that he had completed accident investigation and was beginning criminal investigation, but trooper did not read Miranda warnings to defendant, all statements made by defendant are suppressed
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Contracts and agreements relating to reimbursement of medical provider by HMO, PPO and private insurance carriers and reimbursement rates accepted by provider from Medicaid and Medicare are not discoverable in PIP action -- Reimbursement rates accepted from other PIP carriers and from third-party payors with which provider does not have negotiated rate contracts are discoverable
VIEW OPINION

Insurance -- Small claims -- Motion to invoke Rules of Civil Procedure in small claims action is denied -- Insurer's motion for leave to file amended answer and additional affirmative defenses is granted
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Failure to attach reverse side of assignment form that contained only assignor's signature did not invalidate otherwise compliant demand letter
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Sufficiency -- PIP statute does not require that demand letter calculate exact amount owed by insurer -- By attaching itemized statement to demand letter, medical provider satisfied requirements of section 627.736(10) -- Mathematical errors or inconsistencies relating to prior payments made by insurer does not void otherwise compliant demand letter
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment -- Document signed by insured that directs payment from insurer directly to medical provider is valid assignment conferring standing on provider -- Qualifying language stating that insured remains financially responsible for all charges including attorney's fees and costs does not invalidate otherwise proper assignment
VIEW OPINION

Consumer law -- Debt collection -- Motion to dismiss complaint alleging violation of Florida Consumer Collection Practices Act by direct communication with person represented by counsel is denied where complaint contains sufficient facts to state cause of action, and argument that communications could constitute loss mitigation rather than debt collection is more appropriately addressed in motion for summary judgment -- Motion to strike any damage allegation in excess of $1,000 statutory damages is denied where plaintiff has made good faith allegations that, if proven, would constitute actual damages for emotional distress -- Jury trial -- Waiver -- Plaintiff did not waive right to jury trial in FCCPA case by executing mortgage that includes jury trial waiver -- Notice of punitive damages is stricken where plaintiff has not complied with section 768.72
VIEW OPINION

Consumer law -- Debt collection -- Motion to dismiss amended complaint alleging violation of Florida Consumer Collection Practices Act by direct communication with person represented by counsel is denied where complaint contains sufficient facts to state cause of action, and argument that communications could constitute loss mitigation rather than debt collection is more appropriately addressed in motion for summary judgment -- Motion to strike any damage allegation in excess of $1,000 statutory damages is denied where plaintiff has made good faith allegations that, if proven, would constitute actual damages for emotional distress
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Motion in limine seeking to exclude from evidence officer's request for a breath test and the breath test results is granted where defendant's agreement to submit to breath test was induced by implied consent warning which included misstatement of law regarding consequences of providing a breath sample above the legal limit
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Medical provider that refused to withdraw claim after acknowledging that claim was paid in full and policy limits were exhausted is liable for attorney's fees under section 57.105
VIEW OPINION

Insurance -- Venue -- Venue statute governing actions against corporations is not applicable to action against insurer who is reciprocal insurer, not corporation -- Venue is proper in county where medical provider's billing was generated and payment was due -- Claims of inconvenience to insurer and witnesses do not support transfer of venue where case involves two legal issues that will not require witness testimony -- Motion to transfer venue is denied
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitations” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Officer who did not observe defendant in actual physical control of vehicle did not have basis for arresting defendant for driving under influence -- Fellow officer rule -- Arresting officer could not rely on observations of fellow officer who was from neighboring jurisdiction -- Officer acting outside jurisdiction, who was the first officer on the scene, did not qualify as a “fellow officer” within meaning of fellow officer rule where he did not observe driver commit crime in officer's own jurisdiction, and there was no evidence of a mutual aid agreement between the jurisdictions -- Officer acting outside jurisdiction could not make valid citizen's arrest where there was no breach of peace when he came onto scene and, because vehicle was disabled when officer arrived, it was unlikely that defendant could drive away and be a danger
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- Document that assigns all benefits and rights from automobile insurance policies is valid assignment that confers standing
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Amount
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency service providers, insurer should not have applied claim by plaintiff provider within that classification to deductible
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitations” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Consumer law -- Debt collection -- Action for account stated is dismissed where plaintiff has failed to show that there is any fixed balance due -- Plaintiff cannot pursue unjust enrichment claim where there is express contract between parties that governs action
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered treatment -- Affirmative defense of failure to comply with provision of Health Care Clinic Act concerning medical director is stricken -- Insurer cannot state cause of action for perceived violation of Act absent independent determination of violation by Agency for Health Care Administration, and affirmative defense is barred by insurer's own actions in finding claim compensable and reimbursing medical provider under statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitations” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Attorney's fees -- Debt collection -- Mutuality or reciprocity of obligation -- Irrespective of fact that plaintiff phrased claim for relief in debt collection action as action for account stated and open account, where relief sought was based upon express credit card agreement that contains attorney's fees provision, prevailing defendant is entitled to attorney's fees under reciprocity statute
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Providers of emergency services and care who submit their bills in accordance with section 627.736(4)(c) are entitled to have their bills paid regardless of the existence of a deductible
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Corporate representative of insurer -- Scope of inquiry
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency service providers, insurer should not have applied claim by plaintiff provider within that classification to deductible -- Insurer cannot dispute reasonableness of charge after it allowed full amount of charge when applying charge to deductible
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment sufficiently communicated insured's intent to convey right to file lawsuit should provider feel it was not properly paid -- Demand letter -- Presuit demand letter met all statutory requirements where provider attached itemized statement setting forth name of providers who rendered treatment and services, exact amount, date of treatment, service, or accommodation, and the type of benefit claimed to be due -- Fact that itemized statement showed zero balance does not change result -- Statute does not require that demand letter itemize treatment or service by CPT code
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Where insurer utilized permissive statutory fee schedule to calculate reimbursement rate although policy is devoid of any reference to section 627.736(5)(a)2 and merely refers to “fee schedules applicable to automobile insurance,” insurer unilaterally determined “reasonableness” and discovery on issue of reasonableness shall not be had by either party -- Deposition of insurer's corporate representative shall be conducted to establish basic facts and authenticate record evidence to allow parties to proceed to summary judgment on issue of whether policy gave adequate notice of insurer's intent to utilize permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Where insurer utilized permissive statutory fee schedule to calculate reimbursement rate although policy is devoid of any provision electing to use fee schedule to calculate reimbursement rate, insurer unilaterally determined “reasonableness” and deposition of medical provider on issue of reasonableness is not relevant or necessary -- Protective order is granted
VIEW OPINION

Consumer law -- Debt collection -- Consumer debt -- Homeowners association maintenance assessments are consumer debts within meaning of Florida Consumer Collection Practices Act -- Motion to dismiss is denied
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Defects -- Abatement -- Motion to abate PIP action to afford medical provider opportunity to cure defective demand letter is denied
VIEW OPINION

Insurance -- Discovery -- Depositions -- Litigation adjuster and pre-litigation adjuster
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical benefits -- Claim that insurer underpaid one date of service by $8.00 is barred by doctrine of de minimis non curat lex
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment -- Where complaint alleges that insured assigned her rights, title and interest under policy and attached document assigns insured's “PIP automobile insurance policy benefits,” motion to dismiss for lack of standing is denied
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment -- Document that assigns both benefits and rights is sufficient to confer standing on medical provider
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry regarding reimbursement levels in community and documents to be produced at deposition of insurer's corporate representative
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Standing -- Plaintiff who received assignment from provider has standing to bring action against insurer -- Exhaustion of policy limits -- Where insurer received plaintiff's demand letter and copies of assignments from insured to provider and from provider to plaintiff before paying remaining benefits to provider, payment to provider was gratuitous and did not exhaust benefits -- Payment to provider did not effect accord and satisfaction as to debt owed by insurer to plaintiff
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- HMO and PPO contracts between medical provider and other insurers are confidential and proprietary information, and neither contracts nor testimony about their contents is discoverable
VIEW OPINION

Insurance -- Property -- Standing -- Assignment -- Purported inconsistency in designation of repair facility in assignment is factual dispute, not grounds for dismissal
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Trade secrets -- Although contracts between medical provider and HMO/PPO carriers are trade secrets, reimbursement amounts contained in contracts are not -- Provider is directed to reveal reimbursements amounts without identifying actual HMO/PPO carriers involved
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Documents -- Trade secrets -- Although contracts between medical provider and HMO/PPO carriers are trade secrets, reimbursements amounts contained in contracts are not -- Provider is directed to reveal reimbursements amounts without identifying actual HMO/PPO carriers involved
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Documents -- Trade secrets -- Although contracts between medical provider and HMO/PPO carriers are trade secrets, reimbursements amounts contained in contracts are not -- Provider is directed to reveal reimbursements amounts without identifying actual HMO/PPO carriers involved
VIEW OPINION

Insurance -- Personal injury protection -- Standing -- Assignment
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry at deposition of insurer's corporate representative regarding reimbursement levels in community
VIEW OPINION

Insurance -- Personal injury protection -- Deductible -- Proper formula for payment of PIP claim requires that deductible be subtracted from total billing amount before statutory fee schedule reductions are applied
VIEW OPINION

Consumer law -- Debt collection -- Jury trial -- Waiver -- Plaintiff did not waive right to jury trial in Florida Consumer Collection Practices Act case by executing mortgage which includes jury trial waiver
VIEW OPINION

Insurance -- Standing -- Assignment -- Sufficiency
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Reimbursement rates accepted by medical provider from health insurers, workers' compensation insurer, Medicaid, Medicare, and cash-paying patients are not discoverable -- Provider's billing policies and fee schedules pertaining to Florida no-fault insurers for CPT codes at issue and documents pertaining to payments made by Florida no-fault insurers for CPT codes at issue are discoverable
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Interrogatories -- Medical provider is not required to disclose reimbursement rates accepted from health insurers, workers' compensation, Medicaid, Medicare, and cash-paying patients -- Provider is required to disclose whether it accepted an amount from other Florida no fault insurers for CPT codes at issue that is less than amount paid by insurer
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- HMO and PPO contracts between medical provider and other insurers are confidential, trade secret, and proprietary documents that are not discoverable and cannot reasonably lead to discoverable evidence -- Medicare fee rates are not relevant to determination of reasonableness of charges in PIP case -- Request to produce “letters of protection” inquires into issues not raised in pleadings and is, therefore, not relevant to litigation
VIEW OPINION

Insurance -- Personal injury protection -- Delay in payment -- Request for information or documentation -- Where medical provider made no response to insurer's pre-suit request for information and documentation relating to treatment of insured, claim was not overdue at time demand letter was issued, and suit is premature
VIEW OPINION

Insurance -- Sanctions -- Insurer's motions for sanctions are denied and found to be scandalous pleadings
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Emergency medical condition -- Declaratory action -- Question as to whether, under PIP statute, reimbursement limit of $10,000 or $2,500 is applicable when record is silent as to existence of emergency medical condition is appropriate matter for declaratory relief -- Motion to dismiss denied
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Justiciable issues -- Where by end of 21-day safe harbor period medical provider could have determined that insurer was entitled to reimburse bills in accordance with statutory fee schedule by reference to policy language provided by insurer and that provider had received check for full amount due, motion for attorney's fees is granted -- Motion for attorney's fees filed after expiration of safe harbor period but before provider filed voluntary dismissal was timely filed -- Section 57.105 does not require that motion for attorney's fees be filed immediately after expiration of safe harbor period
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitation” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Criminal law -- Search and seizure -- Vehicle parked on side of open gas station/convenience store, with motor running, backed into parking space and facing towards highway -- Seizure occurred when officer directed defendant to turn off car and remove keys -- Under totality of circumstances, officer had founded suspicion based on articulable facts justifying temporary seizure of defendant for purpose of investigating possibility of robbery occurring at store -- Officer had information that convenience stores/gas stations in particular area were going to be robbed, and vehicle was observed backed into parking lot with engine running for 30 minutes or more with none of occupants exiting and no persons entering -- Motion to suppress pill container containing cocaine residue retrieved from vehicle is denied
VIEW OPINION

Criminal law -- New trial -- Newly discovered evidence -- Photographs of defendant that were known to defendant and defense counsel prior to trial but were unattainable until after trial is not newly discovered evidence -- Motion for new trial is denied
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Officer's observation of vehicle “casting” within lane and traveling 8 - 10 mph under speed limit did not provide sufficient basis for stop -- Motion to suppress is granted
VIEW OPINION

Insurance -- Attorney's fees -- Justiciable issues -- Where defendant created confusion as to which subsidiary issued policy at issue by intertwining names of subsidiaries and parent company, and medical provider timely sought to amend complaint to name correct insurer within 21-day safe harbor period, insurer's motion for sanctions is stricken -- Because defendant insurer and correct insurer are separate and distinct corporate entities, provider cannot amend complaint to name correct insurer, but must refile suit
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Tip -- 911 callers who identified themselves to law enforcement and provided sworn statements are citizen informants whose tips are presumed to be reliable -- Deputy had reasonable suspicion for stop based on reports of reckless driving and own observations that defendant crossed fogline, veered too far in entering highway exit lane, and drove on top of cement divider in parking lot -- Motion to suppress is denied
VIEW OPINION

Small claims -- Final judgment for plaintiff in action to recover refund due from cancelled vehicle sale and fees for vehicle storage
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Tip -- Contemporaneous report by parking lot assistant that obviously drunk persons entered van and were driving out of parking lot was admissible under spontaneous statement exception to hearsay rule and provided reasonable suspicion for investigatory stop -- Motion to suppress is denied
VIEW OPINION

Insurance -- Attorney's fees -- Discovery -- Documents -- Time sheets
VIEW OPINION

Criminal law -- Search and seizure -- Residence -- Consent -- Consent to enter house given by defendant's roommate was valid consent irrespective of roommate's motive to retaliate against defendant -- Where defendant was seated on couch in his living room when deputy stated that he smelled marijuana, and defendant immediately handed marijuana to deputy without any questioning or demand by deputy, interaction was consensual encounter and disclosure of marijuana was voluntary -- Motion to suppress is denied
VIEW OPINION

Criminal law -- Search and seizure -- Vehicle stop -- Traffic infraction -- Speeding -- Deputy's uncontradicted trained visual estimation that defendant was driving 61 mph in 45 mph zone justified stop -- Motion to suppress is denied
VIEW OPINION

Animals -- Neglect -- Owner of 12 dogs seized by county is found to have neglected dogs where photographs of conditions in which dogs were kept show inadequate shelter, food and water; veterinarian testified that owner did not meet community standard for proper and reasonable care of dogs; and dogs' substantial weight gain during two months in county custody confirm that dogs were systematically neglected -- County recovers custody of dogs and cost of their care from date of seizure
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Independent blood test -- Officer's testimony that defendant did not request independent blood test is more credible than defendant's claim that he did request test -- Motion to suppress is denied
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Failure to advise defendant of consequences of refusing to submit to breath test is not grounds for suppression of breath test results -- No merit to claim that breath test operator was required to conduct second twenty-minute observation period before proceeding with breath test when operator ran second purge of instrument after taking first breath sample
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Scope of inquiry regarding reimbursement levels in community and documents to be produced at deposition of insurer's corporate representative
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Depositions -- Order on documents to be produced at deposition of insurer's corporate representative and scope of inquiry at deposition regarding calculations used to determine payments made to medical provider and reimbursement levels in community
VIEW OPINION

Judges -- Code of Judicial Conduct -- Judge may make pubic appeal for potential foster parents so long as judge does not have personal stake in non-profit agency that is reimbursed costs for vetting and training foster parents and judge makes appeal in manner that cannot reasonably be perceived as coercive or casting doubt on judge's ability to act impartially
VIEW OPINION

Judges -- Code of Judicial Conduct -- Extrajudicial activities -- Judge may donate funds remaining in judge's campaign account to not-for-profit organization on whose board the judge sits -- Donation does not constitute improper fundraising and is not otherwise prohibited by Code of Judicial Conduct
VIEW OPINION

Judges -- Code of Judicial Conduct -- Extrajudicial activities -- Judge who presides over juvenile delinquency court that deals with child victims of human trafficking may not accept appointment as chair of advocacy group relating to human trafficking issues
VIEW OPINION

Judges -- Code of Judicial Conduct -- Judge may make contribution to legal aid organization whose attorneys appear before judge unless circumstances of donation would cause reasonable perception of impropriety
VIEW OPINION

Judges -- Code of Judicial Conduct -- Disqualification -- Judge may maintain ownership interest in business entity that owns building leased to judge's former law firm so long as judge is disqualified from cases involving law firm and business relationship does not lead to excessive number of disqualifications
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency services -- Deductible -- No error in finding that, where both emergency service providers and other medical providers seek PIP benefits, deductible must be applied to benefits paid to other providers rather than those paid to emergency service providers -- Standing -- Assignment from insured to emergency provider was valid so as to confer standing to bring suit on the policy -- Lack of language providing that assignment is irrevocable is not dispositive on issue of standing
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Trial court erred in awarding provider prevailing party attorney's fees pursuant to section 627.428 where judgment obtained after jury trial was less than insurer's presuit settlement offer -- Statute applies to presuit offers of settlement -- Insurer was not required to include attorney's fees in its presuit offer, as plaintiff was not entitled to attorney's fees for work done prior to filing of lawsuit unless insurer's unreasonable conduct necessitated the work, a circumstance not present in instant case
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Emergency services -- Deductible -- Insurer acted improperly when it applied emergency provider's bill to deductible -- Deductible must first be applied to benefits paid to non-priority providers when both priority and non-priority providers seek payment of PIP benefits
VIEW OPINION

Landlord-tenant -- Eviction -- Trial court erred in entering default judgment against tenant for failing to deposit certain rent into court registry where complaint did not allege past due or disputed rent and tenant asserted that her she had already paid rent directly to landlord before eviction complaint was served -- Default judgment set aside -- Remand for further proceedings
VIEW OPINION

Mortgage foreclosure -- Motion for order to show cause why final judgment of foreclosure should not be entered, filed by cooperative association/junior lienholder, is denied -- Discussion of OTSC legislative scheme
VIEW OPINION

Dependent children -- Undocumented immigrant children -- Adjudication of dependency prerequisite to children obtaining special immigration juvenile status -- Petition for adjudication of dependency for undocumented immigrant child is denied where any harm child suffered from mother's alleged abandonment occurred years ago and child, who now resides with uncharged father, is at no risk of abuse, abandonment or neglect from any parent or legal custodian
VIEW OPINION

Dependent children -- Post-disposition custody -- Petition to modify placement of dependent children from foster care to custody of maternal grandmother is granted where there is long-standing familial and loving relationship between children and grandmother and no evidence suggesting that grandmother would not devote herself to care and well-being of children -- Chapter 39 reflects legislative preference in favor of relative custodians in all placement decisions, not just initial placement decisions, so long as such placement is not contrary to best interest of child
VIEW OPINION

Dependent children -- Mental health treatment -- Placement -- Constitutionality -- Separation of powers -- Although circuit court concludes that it has authority to order that dependent child be placed in specific treatment facility and that doing so does not unconstitutionally direct how Department of Children and Families expends its funds or otherwise violate separation of powers doctrine, court is bound by appellate decisions holding otherwise and merely orders that child be placed in secure residential facility specializing in treating adolescents with both mental illness and drug addiction issues
VIEW OPINION

Insurance -- Personal injury protection -- Attorney's fees -- Contingency risk multiplier -- Appeals -- Claim that trial court erred in considering likelihood of success as factor in determining appropriateness of multiplier was preserved for appeal where insurer repeatedly apprised trial court of putative error -- Error not invited by single statement that likelihood of success might be factor if there was testimony on issue -- Likelihood of success at outset of case is factor to be considered in determining amount of multiplier, not appropriateness of imposing multiplier -- However, error was harmless where there was competent substantial evidence to support application of multiplier under correct legal standard
VIEW OPINION

Criminal law -- Boating under influence -- Search and seizure -- Detention -- Reasonable suspicion -- Trial court's findings that presence of beer cans in boat and defendant's maintenance of three-point stance during safety inspection were not factors considered by officer in developing reasonable suspicion for BUI investigation are supported by competent substantial evidence -- Officer did not have reasonable suspicion to conduct BUI investigation where defendant had mild odor of alcohol and red glassy eyes and created small wake while docking boat, but defendant successfully maneuvered boat to dock under officer's instructions, successfully retrieved items for safety inspection, and did not stagger or exhibit slurred speech -- No error in suppressing field sobriety exercises -- Trial court erred in denying motion to suppress evidence, including breath test refusal that occurred immediately after unlawful arrest, as fruit of poisonous tree where there was no purge of taint prior to refusal and no independent source through which evidence could have been lawfully discovered
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Stop of vehicle by officer who had observed licensee speeding and driving erratically and recklessly -- Competent, substantial evidence supported hearing officer's conclusion that, by preponderance of evidence, officer had probable cause and reasonable cause to believe licensee was under influence of alcohol when officer requested that she take breath test
VIEW OPINION

Employer-employee relations -- Civil rights violations -- Retaliation -- Appeal of administrative law judge's decision that former employer engaged in unlawful retaliatory practice in violation of county human rights ordinance by sending letter to former employee threatening legal action unless former employee withdrew discrimination claim -- Due process -- No merit to claim that former employer was denied due process by ALJ's failure to consider litigation privilege defense where former employer presented defense at hearing and in its exceptions -- Neither ALJ's denial of former employer's request to withdraw its consent for former employee to testify telephonically, nor ALJ's attendance at hearing by video conference violated due process -- Material adverse action -- ALJ departed from essential requirements of law by applying subjective standard determining that letter from former employer instilled fear and apprehension in former employee, rather than applying objective standard to determine whether letter would discourage reasonable employee from making or supporting charge of discrimination -- ALJ did not depart from essential requirements of law by concluding that litigation privilege did not bar former employee from bringing retaliation charge -- Letter offering not to pursue lawsuit for trade slander in exchange for withdrawal of discrimination claim was either a settlement offer not subject to litigation privilege or was an attempt to intimidate former employee, not genuine settlement offer -- Competent substantial evidence supported ALJ's finding that former employer did not provide legitimate, non-discriminatory, non-retaliatory reason for letter -- Remand with instructions to apply objective standard to record evidence
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- No merit to argument that evidence was insufficient to establish that officer had reasonable suspicion to stop vehicle for speeding where officer's report describes vantage point from which he observed speeding and states that he visually estimated speed
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Appeals -- Where licensee did not argue below that there was insufficient evidence that she was in actual physical control of vehicle or that she did not understand implied consent warnings, these arguments were nor preserved for appellate review -- Competent, substantial evidence supported findings that officer had probable cause for arrest and that licensee refused breath test where officer found licensee behind wheel of vehicle parked in traffic lane with keys in her hand, licensee exhibited indicia of impairment, and licensee was read implied consent warnings but refused to submit to breath test
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Reasonable suspicion, not probable cause, is required to initiate traffic stop -- Officer who observed licensee drift within lane, cross fogline, almost strike median, and quickly approach vehicle ahead then suddenly change lanes without signaling had reasonable suspicion to stop licensee for failure to maintain single lane and to determine if licensee was ill, tired, in danger, or impaired
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Privilege -- Work product -- Pre-litigation adjuster notes in insurer's claims file are not discoverable in first-party coverage and damages lawsuit between medical provider and insurer -- Trial court departed from essential requirements of law in compelling disclosure of notes
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Policy which provided that insurer would pay 80% of medical expenses and, on separate page, that it would pay 200% of Medicare Part B schedule was ambiguous and must be interpreted in favor of insured -- Trial court properly entered final summary judgment in favor of provider, but it is unclear whether amount awarded was properly calculated -- Remand for recalculation of damages reflecting endorsement provision providing greater coverage
VIEW OPINION

Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Trial court erred in entering summary judgment in favor of insurer on D&A form defense -- Submission of form is not condition precedent to payment of PIP benefits -- Exhaustion of policy limits -- Insurer's reliance on then-existing legal authority regarding D&A form requirement to deny claim, which ultimately resulted in exhaustion of benefits, cannot be considered bad faith
VIEW OPINION

Criminal law -- Dismissal -- Competency to stand trial -- Trial court was not required to conduct hearing to determine whether defendant, who had been found to be incompetent to stand trial by another court one year earlier, remained incompetent to stand trial and whether there was substantial probability that he would be restored to competency before dismissing case where incompetency was due to intellectual disability rather than mental illness -- Trial court erred in dismissing case, however, where dismissal was based on stale finding of incompetency by other court that had since found defendant to be competent to proceed
VIEW OPINION

Criminal law -- Possession of cannabis -- Constructive possession -- Proof of defendant's mere proximity to marijuana cigarette found on floorboard of borrowed jointly-occupied vehicle defendant was driving is insufficient to establish prima facie showing of dominion and control element for constructive possession of cannabis -- No error in granting motion to dismiss
VIEW OPINION

Insurance -- Personal injury protection -- Independent medical examination -- Failure to attend -- Error to enter summary judgment in favor of insurer based on IME no-show defense where there is disputed evidence as to whether insured received and was able to understand IME notices
VIEW OPINION

Criminal law -- Driving while license suspended -- Search and seizure -- Vehicle stop -- Officer who determined from computer check on vehicle tag that registered owner of vehicle had suspended license had reasonable suspicion for investigatory stop -- Officer was not required to establish that driver of vehicle fit description of registered owner prior to stop -- Error to grant motion to suppress post-stop evidence
VIEW OPINION

Criminal law -- Domestic battery -- Evidence -- Impeachment -- Prior convictions -- Appeals -- Preservation of issue -- Claims that trial court erred by allowing state to impeach defendant regarding his prior felony convictions without possessing certified copies of convictions and by allowing state to cross-examine defendant regarding prior dates of incarceration based on NCIC report were not preserved for appeal where trial counsel failed to object to cross-examination or use of NCIC report to refresh defendant's memory -- Defendant has not demonstrated that fundamental error occurred
VIEW OPINION

Municipal corporations -- Zoning -- Waiver -- Where zoning code section establishing minimum area for residential planning development districts provides that smaller area may only be approved upon findings by planning board and city commission that certain conditions exist, city commission departed from essential requirements of law by approving waiver of area requirement without planning board findings and approval
VIEW OPINION

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