Civil Litigation
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Total Settlement Cases: 14
A proposal for settlement was made to the plaintiff pursuant to section 768.79, Florida Statutes (2008) and Florida Rule of Civil Procedure 1.442 which was not accepted within 30 days. After that time period expired, the plaintiff asked for and was granted an addition 20 days to make a decision regarding the settlement offer. Within that 20 day period, the plaintiff accepted the settlement offer and signed a Release of Claims and Hold Harmless Agreement. The plaintiff later decided he, in fact, did not want to settle, and argued that his acceptance was not binding since it did not come within the original 30 day period. The trial court granted the defense’s motion to enforce the settlement and the appellate court affirmed. The district court noted that the plaintiff had not expressly rejected the settlement within the 30 day period and that a valid offer and acceptance had taken place.
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Two parties that were represented by the same attorney argued that the trial court erred in enforcing a settlement agreement between them and a third party because the third party failed to establish that the attorney representing the dissatisfied parties had the authority to settle the case on his clients’ behalf. They third party testified to having received communications from opposing counsel attorney and his office indicating that the attorney had the necessary authority to settle the case. There was no evidence that counsel negotiating on behalf of the third party had personal knowledge regarding what the aggrieved parties had told their attorney to do; the attorney’s representations to him regarding these matters were insufficient. The parties seeking to avoid the settlement both testified that their attorney was authorized only to communicate to opposing counsel that his clients were proceeding in good faith toward settlement, not that they had entered into a binding settlement agreement. The appellate court held the record was not sufficient to permit a conclusion that the attorney had clear and unequivocal authority to settle.
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D
27 Fla. L. Weekly D2217 (Fla. 2nd DCA October 18, 2002)
2002-10-18
SETTLEMENT
The court found that under current Florida case law a set-off was not appropriate where one tortfeasor settled and another went through a jury trial for the same incident that caused injury to the plaintiff and the settling party was not included on the verdict form. Furthermore, although the plaintiffs received a windfall when they received forgiveness of the hospital bill, the court could find no authority which would have allowed them to grant a set-off for that particular amount.
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The Fourth District Court of Appeal held that once an insurance company reserves its right to deny coverage, the insured had the right to take control of the case and defend his/her interests. In addition, even if the insured violated the notice provision in the insurance policy, the insurance company has suffered no prejudice as a result of that violation and cannot defend its duty to reimburse the insured's expenses.
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This toxic tort case hinged upon the admissibility of expert testimony. The court departed from Frye v. United States by confirming the Daubert v. Merrell Dow Pharm. holding. The court re-identified the four factors used to confirm the reliability of scientific evidence: "1) whether the theory can and has been tested; 2) whether it has been subjected to peer review; 3) the known or expected rate or error; and 4) whether the theory or methodology employed is generally accepted in the relevant scientific community." In this case, a Daubert hearing was held to determine if evidence to be presented through expert testimony was speculation and conjecture and therefore inadmissable or based on accepted scientific data. The court found that the expert
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Myron v. Shulman
27 Fla. L. Weekly D1381 (Fla. 4th DCA June 21, 2002)
2002-06-21
SETTLEMENT
Testimony of a witness whose name is not disclosed in accordance with a pretrial order may be excluded by the trial court. The Fourth District Court of Appeal found that the trial court properly excluded plaintiffs
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A case may be removed into a federal court, pursuant to 28 U.S.C. Section 1441, in order to approve a settlement and apportionment of a minor
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In reversing an order granting summary judgment in favor of American Hotel, the Third District Court of Appeal found that the parties had, in fact, entered into a legally enforceable contract based on the following basic rules of contract interpretation: 1) the contract should be considered as a whole, not in isolated parts; 2) the plain meaning of language used in a contract controls where that language is unambiguous; 3) employment contracts that provide a definite duration are enforceable; and 4) the interpretation of the contract should be consistent with reason, probability and the practical aspect of the transaction. Furthermore, the Court found that even if the contract did not contain an express statement as to duration, the trial court should have determined the intent of the parties by examining the nature and circumstances surrounding the contract and its execution and reasonably construed the agreement as a whole.
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Lehner v. Durso
27 Fla. L. Weekly D1106 (Fla. 4th DCA May 17, 2002)
2002-05-17
SETTLEMENT
Pursuant to Fla. R. Civ. Pro. 1.540(b), in setting aside a default, the trial court must determine inter alia (1) whether the defendant has demonstrated excusable neglect in failing to respond; (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief. The motion to set aside the default must be denied if the defendant fails to satisfy any of these elements. Gross neglect is not excusable.
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An administrative law judge is not to allow parties the opportunity to enter into evidence new exhibits without first allowing the other party adequate time to prepare responses or bring forward other evidence. Such actions unfairly prejudices a party and is therefore grounds for a new hearing.
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A party whose motion to dissolve or modify an injunction is denied and who fails to make a timely appeal, is barred from filing a successive motion for similar relief
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Joanne Tobias, as Personal Representative of the Estate of Francis Tobias, appealed an order enforcing settlement and dismissing the action with respect to the defendant-appellee Velma Barnaby. The personal representative filed suit against the defendants arguing that the two defendant corporations had been hired to provide in-home health care for her late mother, Francis Tobias. Defendant-appellee, Velma Barnaby, was a home health care worker who provided services to the decedent. The complaint also alleged that defendant stole jewelry while working in the home. Defendant, All County, filed a motion to enforce settlement which asserted that a settlement had been reached between the personal representative and defendant All County but, despite the settlement agreement, the personal representative had refused to execute the settlement documents. The PR
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An offer to settle that does not protect the insured or only partially settles a claim against the insured cannot be said to provide the insurer with a reasonable opportunity to settle the claim. Consequently, it cannot subject the insurer to a bad faith claim for failure to settle. Because the offer presented would not protect the insured, the insurer did not act in bad faith by failing to settle. Additionally, if there is no valid opportunity to settle, the insurer could not have acted in bad faith by failing to notify the insured of the offer. Since the "offer" contemplated settling within policy limits, there was no duty to involve the insured in the negotiations. Because there was no bad faith, there was no basis upon which to award attorney
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The court concluded that the proposal for settlement made by the defendant pursuant to Rule 1.442 was ineffective because it offered a lump sum to a plaintiff and his wife, when the plaintiff was injured in a motor vehicle accident, and the wife
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