Thu 23rd Jan | 2014

Florida Law Weekly – Cases From The Week of January 10, 2014

The Week in Torts BY


TOBACCO CLASS MEMBERS WHO TIMELY OPTED OUT OF THE CLASS BUT DID NOT TIMELY FILE INDIVIDUAL SUITS, WERE BARRED FROM DOING SO–PERSONAL REPRESENTATIVE’S CLAIM THAT THE OPT-OUT NOTICE WAS INVALID BECAUSE THE ENGLE TRIAL COURT DID NOT ENTER AN ORDER ACKNOWLEDGING THE NOTICES INDIVIDUALLY, AND LISTING THE NAMES OF EVERY PERSON OR ENTITY THAT OPTED OUT OF THE CLASS, HAS NO MERIT Roughton v. R.J. Reynolds, 39 Fla. L. Weekly D55 (Fla. 1st DCA December 31, 2013). TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY DENYING MOTION TO STAY FLORIDA ACTION PENDING RESOLUTION OF EARLIER-FILED FEDERAL LAWSUITS IN U.S. DISTRICT COURT FOR DELAWARE–PARTIES AND LAWSUITS WERE SUBSTANTIALLY SIMILAR AND RELATED, AND THE VARIOUS CLAIMS AND COUNTERCLAIMS OVERLAPPED Benihana of Tokyo v. Benihana, Inc., 39 Fla. L. Weekly D61 (Fla. 3rd DCA January 2, 2014): The petitioner defendant, Benihana of Tokyo, Inc., sought a writ for petition of certiorari of a Dade County’s judge’s refusal to stay a case against it. The basis for the stay was that a similar suit with common issues had been filed previously in the Delaware federal court. The Third District believed the result in those lawsuits appeared likely to materially affect the viability of some of the Florida claims. The court found that petitioners demonstrated material injury, and, if the Florida action was permitted to move forward before the Delaware lawsuit, it would interfere with principles of comity.TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FINDING NO COVERAGE FOR BODILY INJURY CLAIMS ARISING OUT OF ACCIDENT BASED ON “NAMED-DRIVER” EXCLUSION PROVISION OF POLICY–COMMERCIAL VEHICLE BEING DRIVEN BY A PERSON WHO HAD NOT BEEN ADDED AS A DRIVER AFTER THE POLICY WAS OBTAINED Antonelli v. United Automobile Insurance Co., 39 Fla. L. Weekly D61 (Fla. 3rd DCA January 2, 2014): At the time the insurance was obtained, this policy contained an unambiguous named driver exclusion. The driver, however, had never been added as a driver after the policy was obtained. Therefore, pursuant to the exclusion, the policy did not provide BI coverage for the claims due to the accident. The court reversed, however, that portion of the judgment finding no personal injury protection or property damage coverage under the policy, because those particular coverages are mandated by statute. COURT REVERSES SUMMARY JUDGMENT ENTERED IN MEDICAL MALPRACTICE CASE BASED ON THE STATUTE OF LIMITATIONS Young v. Naples Community Hospital, 39 Fla. L. Weekly D72 (Fla. 2nd DCA January 3, 2014): A woman went to the emergency room with severe abdominal pain on February 19, 2006. Her CT scan was read by a physician physically located in Switzerland. He read the CTA as unremarkable, and she ultimately was shown to have a blood clot that needed to be removed. She was not discharged from the hospital until April 12, 2006. Her attorney filed for an automatic stay under §766.104(2), and then on April 1, 2008, plaintiffs gave notice of their intent to initiate a lawsuit against the radiologists. Two months later, they gave notice of the intent to a radiology company that provided the night-time radiology services for the defendant, Naples Radiologists, as well as the independent contractor physician with that company. Even though the plaintiffs’ notice to the second set of defendants came later, pursuant to Rule 1.650(b)(1), notice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as a notice to the person and any other prospective defendant “who bears a legal relationship” to the prospective defendant receiving the notice. Because the original defendant, Naples Radiologists, was in a legal relationship with NightHawk and Dr. Grennan, that rule was triggered, and summary judgment was improper.