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					                                  R ISSMAN , B ARRETT , H URT ,
                                  D ONAHUE & McL AIN , P. A.
                                               ATTORNEYS         AT   LAW

STEVEN A. RISSMAN                                  201 EAST PINE STREET                           SEAN M. CROCKER
ROBERT C. BARRETT                                                                                 CHRISTOPHER E. DENNIS
                                                        15TH FLOOR
JENNINGS L. HURT III                                                                              SARAH E. EGAN
ROBERT A. DONAHUE                                      P.O. BOX 4940                              DAVID A. FIFNER
JOHN E. McLAIN III                              ORLANDO, FLORIDA 32802-4940                       JOSHUA T. FRICK
RICHARD S. WOMBLE                                 TELEPHONE (407) 839-0120                        PAUL B. FULMER
JOHN P. DALY                                     TELECOPIER (407) 841-9726                        JANNINE C. GALVEZ
STACIE B. GREENE                                                                                  ELISE J. GEIBEL
THEODORE N. GOLDSTEIN                             ORLANDO@RISSMAN.COM                             DARA L. HAGGERTY
RAYMOND A. LOPEZ                                                                                  CHRISTOPHER A. HANSON
VANCE R. DAWSON                                                                                   JEFFREY J. KERLEY
RICHARD B. MANGAN JR.                                                                             STEPHEN M. LAWLER
HENRY W. JEWETT II                  TAMPA COMMONS                          207 S. 2d STREET       G. WILLIAM LAZENBY IV
DANIEL M. POLLACK            ONE NORTH DALE MABRY HIGHWAY             FT. PIERCE, FLORIDA 34950   VICTORIA S. LUNA
ART C. YOUNG                           11TH FLOOR                     TELEPHONE (772) 409-1480    LAURA F. LYTLE
NICOLE D. RUOCCO                                                                                  JEDEDIAH A. MAIN
DANIEL T. JAFFE
                                  TAMPA, FLORIDA 33609                TELECOPIER (772) 409-1481   DARIEN M. MCMILLAN
BEATRIZ E. JUSTIN                TELEPHONE (813) 221-3114              FTPIERCE@RISSMAN.COM       ERIC F. OCHOTORENA
J. GREGORY GIANNUZZI            TELECOPIER (813) 221-3033                                         KARISSA L. OWENS
DAVID K. BEACH                    TAMPA@RISSMAN.COM                                               JEREMY T. PALMA
ALFRED L. FRITH                                                                                   WENDY L. PEPPER
F. DEAN HEWITT                                                                                    JONATHAN K. POLK
EDWARD M. COPELAND IV                                                                             D. BLAKE REHBERG
DAVID R. KUHN                                                                                     AMANDA H. REHER
                                                                                                  KELLEY A. RICHARDS
   OF COUNSEL                                                                                     JUAN A. RUIZ
  ROBERT J. JACK                                   WWW . RISSMAN . COM                            JILL M. SPEARS
   NHAN T. LEE                                                                                    MEREDITH M. STEPHENS
                                                                                                  ELIZABETH M. STUART
EXECUTIVE DIRECTOR
W. SCOTT PETERSON
                                              P LEASE R EPLY T O : O RLANDO                       F. PAUL TIPTON
                                                                                                  NICOLETTE E. TSAMBIS
                                                                                                  JASON R. URBANOWICZ
R. CLIFTON ACORD II                                                                               CHRISTINE V. ZHAROVA
ROBERT D. BARTELS




                                              FLORIDA LAW WEEKLY


                                                JANUARY 8, 2010

            (JLH DID NOT REVIEW)
                                       SETTLEMENT AGREEMENT –
                         ACCEPTANCE OF BELATED PAYMENT DOES NOT CONSTITUTE
                       WAIVER – AWARD OF UNLIQUIDATED DAMAGES WITHOUT NOTICE
                   AND AN OPPORTUNITY TO BE HEARD CONSTITUTES FUNDAMENTAL ERROR

            Sarasota Estate and Jewelry Buyers, Inc. v. Joseph Gad, Inc., 35
            Fla. L. Weekly D2 (Fla. 2d DCA December 23, 2009)

                 The 2d DCA affirmed the trial court’s denial of a motion to
            vacate and set aside the final judgment after default on a
            settlement agreement, but reversed the trial court’s award of
            prejudgment interest without an evidentiary hearing.

                 Joseph Gad, Inc. sued Sarasota Estate and Jewelry Buyers,
            Inc. and Haiel Suwaity for money due under a consignment
            contract and guarantee.  The parties entered into a settlement
            agreement for the principle sum of $250,000, to be paid in
            monthly installments of $15,000.    In the event of default,
            Joseph Gad, Inc. was entitled to judgment, execution, court
            costs, attorney’s fees, and “interest at the maximum rate
Florida Law Weekly
January 8, 2010
Page 2



provided by law,” by filing an Affidavit of Default with the
Clerk of the Court, without notice.

     Sarasota Estate and Suwaity failed to make the first
monthly payment, and Joseph Gad, Inc. filed an Affidavit of
Default.    The record also reflects that Joseph Gad, Inc.
accepted a belated monthly payment. The trial docket entered a
final judgment awarding the principle sum of $250,000, plus
attorney’s fees and costs, plus $90,000 in prejudgment interest.

     The 2d DCA held that the trial court correctly denied
Sarasota Estates and Suwaity’s motion to vacate and set aside
the final judgment, because acceptance of a belated monthly
payment did not constitute a waiver of Joseph Gad, Inc.’s right
to a default judgment pursuant to the settlement agreement.

     However, the award of prejudgment interest amounted to an
award of unliquidated damages, because the settlement agreement
did not provide a method by which the court was to calculate
prejudgment interest. The 2d DCA held it was fundamental error
for the trial court to award unliquidated damages without
providing the required notice and opportunity to be heard
regarding the presentation of evidence for a determination of
the amount of unliquidated damages.   The case was remanded for
the trial court to conduct an evidentiary hearing on the award
of prejudgment interest.


      INSURANCE – LOSS DUE TO THEFT – ESTOPPEL OR WAIVER –
  DISTINCTION BETWEEN PROVISIONS OF FORFEITURE AND PROVISIONS
 OF COVERAGE – INSURER’S COVERAGE OR RESTRICTIONS ON COVERAGE
CANNOT BE EXTENDED BY DOCTRINES OF WAIVER AND ESTOPPEL, BUT MAY
BE ESTOPPED BY ITS CONDUCT FROM SEEKING FORFEITURE OF A POLICY

Lloyds Underwriters at London v. Keystone Equipment Finance
Corp., 35 Fla. L. Weekly D5 (Fla. 4th DCA December 23, 2009)

     The 4th DCA affirmed summary judgment in favor of an
insured, finding that the insurance company was estopped from
relying upon a policy provision that was never provided to the
Florida Law Weekly
January 8, 2010
Page 3



insured, and that would have provided a ground for denial of the
insured’s claim.

     Ricardo Milan, d/b/a Milan Transportation, by and through
its agent, Martin-Argote Insurance, LLC, obtained an insurance
policy from Lloyds Underwriters at London providing liability
coverage on a commercial tractor-trailer.    After the effective
date of the policy, the tractor-trailer was stolen.      It was
undisputed that the policy in question provided coverage for
loss due to theft.    However, Lloyds denied the claim, relying
upon a “garaging warranty” in the policy, which provided that
the vehicle had to be kept in a closed garage, in an enclosed or
24-hour guarded lot, or parked adjacent to the insured’s
residence.  The policy provided that a breach of the “garaging
warranty” would result in denial of a claim or any rights of
recovery.

     Milan argued that he had not been provided a copy of the
policy until after the theft, and was otherwise not aware of the
“garaging warranty.”   Lloyds did not dispute these assertions.
Instead, Lloyds argued that it could not be estopped from
relying upon the “garaging warranty” to deny the claim because
Florida law expressly provides that the doctrines of estoppel
and waiver may not be applied to create or extend insurance
coverage. The trial court granted summary judgment in favor of
Milan on the issue of estoppel.

     The 4th DCA held that, although coverage could not be
extended by the doctrine of waiver and estoppel, the doctrines
of waiver and estoppel are applicable to a provision of
forfeiture.    The “garaging warranty” in this case was a
provision of forfeiture, not one of coverage, as loss due to
theft was plainly covered by the policy and a risk for which a
premium was paid.    The “garaging warranty” provided for the
loss, or forfeiture, of that coverage should the insured fail to
comply with its provisions concerning the storage of the
tractor-trailer.

     Since it was undisputed that Lloyds failed to provide Milan
a binder, a copy of the policy, or any other notice of the
“garaging warranty” prior to the loss, Lloyds was estopped from
Florida Law Weekly
January 8, 2010
Page 4



resorting to a breach of the “garaging warranty” to deny Milan’s
claim. Therefore, the 4th DCA affirmed the trial court’s grant
of summary judgment in favor of Milan on the issue of estoppel.


                    VIDEO AND TRANSCRIPT OF
COMPULSORY MEDICAL EXAMINATION CONSTITUTE PROTECTED WORK PRODUCT

Maguire v. Pool Doctor of the Palm Beaches, Inc., 35 Fla. L.
Weekly D10 (Fla. 4th DCA December 23, 2009)

     There were no facts given in this opinion.     The 4th DCA
held that the trial court erred in allowing the defense to
discover a video and transcript of a compulsory medical
examination of the plaintiff.        The video and transcript
constituted counsel’s protected work product.     The video and
transcript would be discoverable if plaintiff decided to use the
material at trial.


                  PERSONAL INJURY PROTECTION –
    COVERAGE – INSURER’S OBLIGATION TO OBTAIN VALID MEDICAL
   REPORT APPLIES TO WITHDRAWAL, NOT DENIAL, OF PIP BENEFITS

United Automobile Insurance Company v. Professional Medical
Group, Inc., 35 Fla. L. Weekly D34 (Fla. 3d DCA December 23,
2009)

     There were no facts given in this opinion.       The 3d DCA
quashed a portion of the circuit court’s appellate decision that
concluded that a doctor’s peer review, which claimed that none
of the insured’s medical treatment was reasonable, related, or
necessary, did not constitute a “valid medical report” under
F.S. § 627.736(7)(a), because the peer review was not obtained
before the PIP benefits were denied. An insurer’s obligation to
first obtain a “valid medical report” applies to the withdrawal,
not the denial, of PIP benefits.        Accordingly, the 3d DCA
granted, in part, the petition for writ of certiorari and
quashed that part of the circuit court’s appellate decision.
Florida Law Weekly
January 8, 2010
Page 5



                   THE FLORIDA BIRTH RELATED
 NEUROLOGICAL INJURY COMPENSATION PLAN DOES NOT REQUIRE PROOF
 OF A WRITTEN “PREARRANGED PLAN OF TREATMENT” – PARTICIPATING
   PHYSICIANS’ NOTICE OF PARTICIPATION IN THE PLAN SATISFIED
    THE STATUTORY NOTICE REQUIREMENT EVEN WHEN THE HOSPITAL
 WHERE THE DELIVERY TOOK PLACE FAILED TO PROVIDE TIMELY NOTICE

Tarpon Springs Hospital Foundation, Inc. v. Anderson, 35 Fla. L.
Weekly D40 (Fla. 2d DCA December 30, 2009)

     The 2d DCA reversed a decision by an administrative law
judge that a nurse was not a participating physician under the
birth related neurological injury compensation plan (“Plan”) and
that the hospital failed to comply with the notice provisions of
the plan.

     Allison and Timothy Anderson are the natural parents of a
male child born at Helen Ellis Memorial Hospital on July 29,
2004.    Mrs. Anderson had received her prenatal care at West
Coast OB/GYN.    At her initial prenatal visit on December 12,
2003, Mrs. Anderson was given a NICA brochure titled, “Peace of
Mind   for    an  Unexpected   Problem”    and   also   signed an
acknowledgment form that she had been advised of the information
contained therein. On June 24, 2004, the Andersons went to the
hospital    to   pre-register,   but    were   not    provided an
acknowledgement form or a NICA brochure.

     Mrs. Anderson returned to the hospital on the morning of
July 28, 2004, but was diagnosed with false labor and
discharged. She then returned to the hospital on July 29, 2004,
and an emergency cesarean section was ultimately performed. At
delivery, the child was not breathing.           The child was
resuscitated but suffered a birth-related neurological injury.

     In 2007, the Andersons filed a complaint in the circuit
court.     The circuit court proceedings were abated for
determination by the Division of Administrative Hearings
concerning whether the child’s injuries were covered by the
plan. The Andersons filed a petition with NICA. Subsequently,
the nurse, the hospital, the doctor, and other healthcare
providers working at West Coast OB/GYN were granted leave to
Florida Law Weekly
January 8, 2010
Page 6



intervene.   NICA determined that the neurological injury for
which the parents were seeking redress was compensable under the
plan and requested a formal administrative hearing before an
administrative law judge (“ALJ”).

     At the final administrative hearing, the nurse submitted a
document titled, “West Coast Obstetrics & Gynecology, Certified
Nurse Midwife Protocol,” (“the Guidelines”).   She submitted an
“edit copy” because she did not have a copy of the final draft
of the guidelines.    The nurse also testified that she signed
protocols that were filed yearly with the Board of Nursing, but
did not introduce into evidence a copy of the protocols that she
filed.   She explained that she did not have a copy, and she
entered into evidence a letter from the Board of Nursing
indicating that the protocol she filed in 2004 could not be
located.

     The ALJ concluded that the nurse failed to establish that
she was a “participating physician” at the time of the child’s
birth, because she could not produce the final draft of the
guidelines or the protocols that she filed with the Board of
Nursing to prove that the prearranged plan of treatment required
by F.S. § 766.314(4)(c) existed.    The ALJ also ruled that the
hospital failed to comply with the notice provisions of the plan
because Mrs. Anderson was not given a NICA brochure or an
acknowledgement form when she preregistered on June 24, 2004.

     The 2d DCA reversed the decision of the ALJ regarding the
nurse.   The 2d DCA held that the plain language of F.S. §
766.314(4)(c) does not indicate that the prearranged plan of
treatment must be in writing. A correct interpretation of that
section compelled a finding that a prearranged plan of treatment
existed because the nurse presented unrefuted evidence of the
course of action she was authorized to follow when caring for a
patient and the ALJ acknowledged that the nurse filed a protocol
with the Board of Nursing for the year 2004.     Accordingly, the
nurse was a participating physician under the plan.

     The 2d DCA also reversed the decision of the ALJ regarding
the notice requirement by the hospital.      First, the 2d DCA
rejected the hospital’s argument that the notice given by the
Florida Law Weekly
January 8, 2010
Page 7



employees of the hospital at West Coast OB/GYN was effective as
notice given by the hospital under general agency principles.
The record did not reflect that the hospital’s employees had
actual or apparent authority to act on behalf of the hospital.
However, insofar as the participating physicians provided notice
to Mrs. Anderson about their participation in the plan, any
further notice by the hospital would not have improved Mrs.
Anderson’s understanding of her options regarding treatment by a
participating physician and her ability to choose to give birth
at a hospital that was not covered by the plan.        Thus, the
participating physicians’ notice of their participation in the
plan satisfied the statutory notice requirement.    Accordingly,
the decision of the ALJ was reversed.


   PHYSICIAN’S REPORT NOT REQUIRED TO BE BASED ON A PHYSICAL
    EXAMINATION CONDUCTED BY EITHER THE REPORTING PHYSICIAN
   OR BY ANOTHER PHYSICIAN ON THE INSURANCE COMPANY’S BEHALF

United Automobile Insurance Company v. Comprehensive Health
Center LLC, 35 Fla. L. Weekly D51 (Fla. 3d DCA December 30,
2009)

     There were no facts given in this opinion. The 3d DCA held
that a physician’s report, whether used to support a section
627.736(4)(b) denial of a claim that a bill or claim is not
reasonable, related, or necessary, or whether used to support
withdrawal or termination of payments being made to a treating
physician under section 627.736(7)(a), need not be based on a
physical examination conducted by either the reporting physician
or by another physician on the insurance company’s behalf.
Florida Law Weekly
January 8, 2010
Page 8



                 STATE LAW CLAIM FOR FAILURE TO
  WARN OF RISKS OF HEAT-RELATED ILLNESS ON LABELS OF OVER-THE-
    COUNTER COLD MEDICATION WAS NOT PREEMPTED BY FEDERAL LAW

Valdes v. Optimist Club of Suniland, Inc., 35 Fla. L. Weekly D51
(Fla. 3d DCA December 30, 2009)

     The 3d DCA reversed a summary judgment in favor of the
manufacturer of an over-the-counter medication in a product
liability case. The trial court incorrectly held that the state
law claims were barred because the label contained FDA approved
language.

     On April 24, 1999, Armando Valdes, III collapsed during a
roller hockey game. He was resuscitated at the scene and taken
to a hospital.    He was diagnosed with having suffered a heat
stroke and cardio-respiratory arrest which resulted in a brain
injury and left him completely disabled. On the morning of the
collapse, Armando had taken Tylenol Cold, an over-the-counter
medication, and mixed the Tylenol with soda.

     Armando and his parents sued McNeil, the manufacturer of
Tylenol Cold, for strict liability and negligent failure to
warn.   The Valdes’ contended that the Tylenol Cold medication,
which contains pseudoephedrine, increased the risk of heat-
related illness and heart-related risks when ingested with
caffeinated products and coupled with strenuous or athletic
events in a hot environment like that of South Florida. McNeil
moved for summary judgment, arguing that federal law and the
FDA’s labeling requirements preempted the state law claims. The
trial court granted summary judgment in favor of McNeil.

     The 3d DCA reversed, finding the recent United States
Supreme Court decision in Wyeth v. Levine, 129 S.Ct. 1187
(2009), controlling.    The court found that the failure of
Congress to expressly preempt the field in light of the long
history since enacting the FDA leads to the conclusion that
state actions like those here lend force to the premise that
manufacturers, not the FDA, have primary responsibility for
their drug labeling at all times. Thus, the FDA long maintained
that state law offers an additional, and important, layer of
Florida Law Weekly
January 8, 2010
Page 9



consumer protections that complements the FDA regulations.
While certain state requirements concerning over-the-counter
medications may be pre-empted, product liability actions are
expressly preserved. Accordingly, the 3d DCA reversed the grant
of summary judgment in favor of the manufacturer.


                 SUMMARY JUDGMENT FOR DEFENDANT
  AUTOMOBILE DEALERSHIP PROPER WHERE MANNER OF THE THEFT OF A
VEHICLE FROM THE DEALERSHIP PREMISES WAS NOT LEGALLY FORESEEABLE

Demelus v. King Motor Company of Fort Lauderdale, 35 Fla. L.
Weekly D59 (Fla. 4th DCA December 30, 2009)

     The 4th DCA affirmed summary judgment in favor of the
defendant automobile dealership in a personal injury action
where a vehicle stolen by a juvenile gang from the dealership
crashed into plaintiff, Demelus, injuring him.     The 4th DCA
agreed with the trial court that the theft that led to Demelus’
injury was not foreseeable.

     King Motor was an automobile dealership in Fort Lauderdale.
Its property consisted of eleven acres and housed five showrooms
and four buildings for vehicle repair and maintenance.       King
Motor employed an evening security guard who patrolled the well-
lit property.    Metal posts surrounded the perimeter of the
property, such that ingress and egress of a vehicle was possible
only through the designated entrance ways.       At night these
entrance ways were gated, chained, and locked, and blocker
vehicles were placed in front of each of these gates.         The
vehicles on the property were locked and the keys to the
vehicles were stored inside locked buildings.    King Motor also
had a policy to ensure the security of its keys.     The showroom
from which the keys were stolen had hurricane proof windows.

     King Motor had experienced 36 break-ins and thefts of
vehicles during the six-year period prior to May 5, 2006, the
date of the theft and accident. None of these thefts involved a
criminal breaking into a locked showroom and stealing keys to
vehicles, breaking out of the premises through a locked gate, or
ramming blocker vehicles to exit the premises.
Florida Law Weekly
January 8, 2010
Page 10



     On May 5, 2006, the locked showroom had its hurricane proof
windows smashed to allow entry. Glass windows were also broken
to gain access to the locked interior offices.    The room where
the keys were located was broken into, as was the box that held
the keys. After the thieves gained access to the vehicles with
the keys and began driving, the thieves either rammed or moved
the blocker vehicles that obstructed the gate to the premises.
The thieves also rammed open the chained, locked gate.

     Thereafter, one of the stolen vehicles was involved in an
automobile accident with Demelus, causing injury to Demelus.
Demelus then sued King Motor for damages he sustained in the
automobile accident involving the stolen vehicle.

     The 4th DCA held that King Motor did not create a risk, but
rather its nighttime security practices guarded against the risk
that its vehicles would be stolen.      Critically, none of the
prior vehicle thefts from King Motor occurred in the same manner
as the theft in this case.     Additionally, to the extent that
King Motor’s security practices were deficient, the deficiency
does not constitute an affirmative act.     Lastly, the risk of
being injured in an automobile accident already existed when
Demelus chose to travel on the public roads, so the fact that
King Motor kept its cars secured on its premises makes Demelus’
risk of injury no worse.

     Simply put, King Motor kept its vehicles secured, and
therefore did not create a risk of third-party criminal conduct.
This type of injury was unforeseeable given King Motor’s prior
history of vehicle theft. Accordingly, the 4th DCA affirmed the
trial court’s grant of summary judgment for King Motor.


       ADMISSIBILITY OF HISTORICAL CELL SITE INFORMATION

Mitchell v. State, 35 Fla. L. Weekly D63 (Fla. 4th DCA December
30, 2009)

     This is a case of first impression in Florida addressing
the   admissibility  of   historical  cell   site  information.
Historical cell site information involves records that identify
Florida Law Weekly
January 8, 2010
Page 11



the relay tower or towers through which a customer’s calls are
handled, thereby identifying the location from which a call is
made.

     In this case, the 4th DCA affirmed the defendant’s
conviction and sentence for burglary of a dwelling, robbery, and
two counts of battery, all while armed with a deadly weapon, but
wrote an opinion to address the admissibility of historical cell
phone site evidence.    Much of the opinion deals with Fourth
Amendment search and seizure implications.         However, for
purposes of cases involving non-governmental parties, the 4th
DCA held that historical cell site information is not content
based and the user of a cell phone has no expectation of privacy
in those records.

     Therefore, the 4th DCA affirmed the trial court’s admission
of historical cell phone site evidence.


JLH/BRS/der/tsr

				
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