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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
August 8, 2022 - August 12, 2022

Civil Law Headnotes (Jump to Criminal Law Headnotes)

THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
To see others not presented here, log in for more comprehensive weekly listings.

Appeals -- Certiorari -- Jurisdiction -- Torts -- Defamation -- Strategic lawsuits against public participation -- Court lacks jurisdiction to review non-final order denying motion for summary judgment asserting that defamation lawsuit is barred by Anti-SLAPP statute -- Having to defend against lawsuit, even if meritless, does not constitute sufficient irreparable harm to invoke certiorari jurisdiction -- Conflict certified -- Issue of whether rule 9.130's schedule of appealable non-final orders should be amended to include orders that determine motions premised upon Anti-SLAPP statute is referred to Florida Bar's Appellate Rules Committee
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Insurance -- Automobile -- Windshield replacement -- Venue -- Transfer -- Forum non conveniens -- Assignment of benefits -- Assignee's action against insurer -- Trial court abused its discretion by granting insurer's unsworn motion to transfer venue from Seminole County to Alachua County for the convenience of the insured, who was insurer's only identified witness, and the interest of justice -- Insurer failed to meet its burden of proof where it presented no evidence by way of affidavits, depositions, or live testimonies and hearing, and did not file any pre-hearing affidavits or sworn evidence in support of its motion -- Although assignee did not contest that it replaced insured's windshield in Alachua County or that the insured executed the assignment of benefits there, insurer provided no explanation as to how those matters were significant to the litigation such that insured's testimony would be necessary at trial -- Additionally, insurer submitted no affidavit or evidence that insured still resided in Alachua County or that he would be inconvenienced if venue were not transferred -- Trial court's determination that transfer was necessary to avoid burdening a Seminole County jury with a case lacking connection to the county lacked support where assignee made no demand for a jury trial in its small claims suit -- Furthermore, insurer failed to meet burden to show how interest of justice would otherwise be served
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Insurance -- Personal injury protection -- Assignment of benefits -- Attachment to complaint -- Dismissal -- Trial court erred by dismissing provider's action with prejudice based on provider's failure to attach a copy of the insured's alleged assignment to its complaint because no such requirement exists in either section 627.736 or rule 1.130 -- Provider was only required to have alleged the insured's assignment of benefits to have alleged standing -- Existence of the written assignment is more properly addressed through discovery and proof at an evidentiary hearing or trial
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Torts -- Dismissal -- Matters outside four corners of complaint -- Action arising out of injuries sustained when plaintiff lost control of vehicle after he drove over defect in roadway that was covered with water and struck guardrail -- Trial court did not err in dismissing with prejudice claims against owners of property abutting roadway alleging they negligently failed to maintain proper elevation of swale area by roadway as required by provision of county code -- Trial court did not consider matters outside four corners of complaint when it determined that county code provision making property owners responsible for maintaining proper elevations within swale did not impose a legal non-delegable duty on property owners for injuries to motorists on roadway -- Further, complaint did not allege that accumulated water caused defect in roadway, did not contend that property owners had duty to repair defect in roadway, did not allege that the accident occurred in swale area which owners had duty to maintain, and did not allege that owners had any prior warning or knowledge of defect in roadway or accumulation of water that allegedly resulted because of the swale
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Torts -- Hospitals -- Medical malpractice -- Vicarious liability -- Actual and apparent authority -- Non-delegable duty -- Action stemming from injuries allegedly caused by treating physician's failure to administer appropriate treatment to plaintiff after she was transferred to defendant hospital's emergency department, which was operated by an independent contractor who employed the treating physician -- Trial court erred in entering summary judgment in favor of hospital on vicarious liability claims -- Based on terms of the agreement between hospital and independent contractor, which both disclaimed any employer-employee relationship and gave hospital ultimate control over emergency department personnel and the methods and practices employed by emergency room physician, a genuine dispute remained about the hospital's supervision and right of control over the emergency treating physician -- In addition, the record indicated that hospital adopted and maintained medical practices protocols or guidelines used by emergency department physicians to decide whether to provide the treatment allegedly withheld from plaintiff -- Genuine issues of fact likewise persist on plaintiff's apparent agency claim where, in addition to agreement-related right of control, plaintiff put forth evidence of transferring facility's seeking out hospital for patient transfer expressly because of its capabilities as a facility to provide care plaintiff required; emergency department physician who received and treated plaintiff executed form confirming that hospital had the capability to treat plaintiff; and, although hospital had adopted a consent form to inform patients that emergency department physicians were independent contractors, this form wasn't provided to or signed by plaintiff or her family prior to her treatment -- No error in entering summary judgment on non-delegable duty claim because chapter 395 does not impose a non-delegable duty of care upon hospitals to provide non-negligent services
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Workers' compensation -- Medical benefits -- Attendant care -- Prescription -- Specificity -- Judge of compensation claims erred by denying claimant's claim for attendant care because she did not provide the employer/carrier with a sufficiently specific written prescription pursuant to section 440.13(2)(b)1. -- E/c was attempting to hide behind a wall of ignorance and using statute as a shield to absolve them of their duty to monitor claimant's injuries and provide needed benefits where e/c had immediately authorized attendant care based on authorized treating physician's prescription, informed claimant that they would provide more details, and initiated the prescribed home health evaluation process, only to fail to provide treating physician with the results of those evaluations so that he could give them written specifics of the amount and type of care claimant required
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Criminal Law Headnotes (Jump to Civil Law Headnotes)

THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
To see others not presented here, log in for more comprehensive weekly listings.

Criminal law -- Sentencing -- Violent career criminal -- Qualifying offenses -- Defendant's conviction for battery on a person over 65 cannot support his VCC sentence -- Because battery on a person over 65 is a simple battery that does not necessarily require physical force or violence, it cannot be a forcible felony under section 775.084(1)(d)
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