The Week in Torts – Cases From the Week of July 16, 2021
Not So Fast, Your Honor.
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 28
CASES FROM THE WEEK JULY 16, 2021
A TRIAL JUDGE MAY NOT SUA SPONTE TRANSFER VENUE UNTIL THERE IS A SHOWING THAT THE PLAINTIFF’S CHOSEN VENUE WAS IMPROPER, OR THAT TRANSFER WAS APPROPRIATE ON FORUM NON CONVENIENS GROUNDS
Independent Imaging v. USAA Casualty Insurance Co., 46 Fla. L. Weekly D1592 (Fla. 4th DCA July 7, 2021):
The court entered orders transferring venue sua sponte, without any showing that the plaintiff’s chosen venue was improper, or that transfer was appropriate on forum non conveniens grounds.
While USAA argued that the lawsuits were subject to a forum selection clause, it never moved for transfer based on that clause. The law does not allow trial courts to raise transfer of an action based on improper venue on its own accord.
TRIAL COURT ERRED IN AWARDING UNLIQUIDATED DAMAGES WITHOUT AFFORDING ADEQUATE NOTICE AND AN OPPORTUNITY TO BE HEARD
Whitehead v. Shutter Hangers, 46 Fla. L. Weekly D1587 (Fla. 3rd DCA July 7, 2021):
A defaulting party has a due process right to both notice and an opportunity to be heard when it comes to presenting and evaluating the evidence necessary to a judicial determination of the amount of unliquidated damages.
In this case, the lower court awarded unliquidated damages without giving the defaulting party that chance, necessitating reversal and remand on that issue.
GENERALLY SPEAKING, AN INSURED MAY MAKE AN AUDIO OR VIDEO RECORDING OF AN INSPECTION OF HIS OR HER HOME BY THE INSURANCE COMPANY’S APPRAISER, EVEN IF ALL PARTICIPANTS DO NOT AGREE
Silversmith v. State Farm, 46 Fla. L. Weekly D1592 (Fla. 4th DCA July 7, 2021):
The plaintiff insured in this first-party property insurance case sought to tape State Farm’s appraiser during the appraisal process. The trial court ruled that such a recording could not be made pursuant to §934.03, Florida Statutes, which precludes the “interception of oral communications” in some circumstances.
The court found that a person may record a visitor within the person’s own home. For an oral conversation to be protected under §934.03, the speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.
As the insured argued, nothing in the State Farm policy precluded an audio or video recording of the appraisal inspection, and the insurer’s appraiser had no legitimate expectation of privacy while in the insured’s home for the inspection.