Tomato/Tomahto

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 10

CASES FROM THE WEEK MARCH 12, 2021

TRIAL COURT ERRED IN DENYING MOVANT’S MOTION FOR CONTINUANCE TO ENABLE HIM TO CORRECT TECHNICAL DIFFERENCES BETWEEN A “DECLARATION,” AND AN “AFFIDAVIT”

King v. Zaslavskiy, 46 Fla. L. Weekly D485 (Fla. 3rd DCA March 3, 2021):

The court began by observing that it is far from clear that declarations which are admissible in Federal Court under Rule 56 (c)(4), are similarly admissible in Florida summary judgment proceedings.

In this case, the court decided not to answer that question. The documents the plaintiff submitted in opposition to summary judgment were based on personal knowledge, and sworn under penalty of perjury. Further, the defendant did not make the motion to exclude them until the hearing on summary judgment.

Accordingly, plaintiff’s motion for continuance to correct the technical differences between a declaration and an affidavit should have been granted, and the trial court’s refusal to permit the amendment was error.

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NO ERROR IN DISMISSING COMPLAINT AGAINST INSURER BASED ON FINDING THAT CIVIL REMEDY NOTICE WHICH CITED 35 STATUTORY PROVISIONS AND LISTED NEARLY EVERY PROVISION IN THE INSURANCE POLICY, FAILED TO SATISFY THE STATUTORY REQUIREMENT THAT AN INSURED STATE WITH SPECIFICITY THE POLICY LANGUAGE IN STATUTORY PROVISIONS AT ISSUE

Julien v. United Property & Cas. Ins. Co., 46 Fla. L. Weekly D486 (Fla. 4th DCA March 3, 2021):

On the plaintiff’s motion for rehearing, rehearing en banc, and request for certification of a question of great public importance, the court denied the plaintiff’s motion but sua sponte withdrew its prior opinion and issued a new one.

In the new opinion, the court specifically addressed Judge Middlebrooks’ order in the Southern District in Pin-Pon Corp. v. Landmark American Ins. Co., 465 F.Supp. 3rd 1227, 1228 (S.D. Fla. June 5, 2020), reconsideration granted, 2020 W.L. 6588379 at 1 (S.D. Fla. November 10, 2020).

The Fourth District reiterated its conclusion that the plaintiff did not substantially comply with the specificity standard of the statute, and that the failure was more than a mere technical defect. As a result, the court concluded that the circuit court correctly determined that the plaintiff failed to satisfy the requirement that the insured identify the specific statute, and specific policy provision relevant to the insurer’s alleged violation.

The court also advised that simply because the Department of Financial Services did not return the notice as deficient, was not enough to determine the legality of the notice (the legislature’s discretionary grant of authority does not determine legality), nor is there any evidence that the Department ever even considered the issue.

The circuit court must still independently review a notice, even if the Department has made a specific determination about its legality. The Department’s failure to return the notice does not mean that the notice was legally sufficient.

MOTION FOR REHEARING OF ORDER DENYING MOTION TO SET ASIDE DEFAULT DOES NOT TOLL THE TIME TO FILE A NOTICE OF APPEAL

Rhody v. Veeco Instruments, Inc., 46 Fla. L. Weekly D507 (Fla. 5th DCA March 5, 2021):

Orders entered on motions for relief from or to set aside a final judgment are reviewable under Fla. R. App. P. 9.130(a)(5). A motion for rehearing of an order denying relief from or to set aside a final judgment does not toll the time to file a notice of appeal, and as such, the plaintiff’s notice of appeal was filed untimely.