14 April

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Equitable Estoppel SOMETIMES Allows a Non-Signatory the Right to Compel Arbitration

“Where a contract subjects to arbitration claims between certain enumerated parties, that limiting language matters. Under appropriate circumstances, a non-signatory might invoke equitable estoppel to access an arbitration clause, but not to excavate it and fill it with new terms.” Florida Roads Trucking, LLC v. Zion Jacksonville, LLC, 49 Fla.L.Weekly D819a (Fla. 5th DCA 2024). Arbitration is a creature of contract. In Florida Roads Trucking, a non-signatory to a contract tried to compel arbitration of a dispute arguing that the arbitration provision in the plaintiff’s contract with another party should apply. This argument is based on a theory of equitable estoppel: Florida and federal...

31 March

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Home Venue Privilege Applies to Government Defendants

Posted by David Adelstein

in Trial Perspectives

“Governmental defendants in Florida are entitled, absent waiver or exception, to “home venue privilege,” i.e., to be sued in the county where their headquarters are located.” Florida Pace Funding Agency v. Pinellas County, 49 Fla.L.Weekly 660a (Fla. 2d DCA 2024). This home venue privilege is important to governmental entities since it ensures they are sued in their home county, i.e., where their taxpayers and residents will serve on a jury. A remote exception to this home venue privilege is known as the sword wielder exception. The sword wielder exception allows a plaintiff to sue a government defendant outside of the home county...

24 March

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Election of Remedies Doctrine

Posted by David Adelstein

in Trial Perspectives

A recent case out of Florida’s Third District Court of Appeals provides a worthy discussion of the election of remedies doctrine: The Florida Supreme Court has stated: The election of remedies doctrine is an application of the doctrine of estoppel and operates on the theory that a party electing one course of action should not later be allowed to avail himself of an incompatible course. The purpose of the doctrine is to prevent a double recovery for the same wrong. Under Florida law, however, the election of remedies doctrine applies only where the remedies in question are coexistent and inconsistent. . ....

17 March

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Enforceable Settlement Does Not Need to be Signed and can be Agreed by Attorneys

Posted by David Adelstein

in Trial Perspectives

“To be enforceable, an agreement must be sufficiently specific, and reflect assent by the parties to all essential terms. . . . Where essential terms of an agreement remain open, subject to future negotiation, there can be no enforceable contract.” Portner v. Koppel, 49 Fla.L.Weekly D599a (Fla. 4th DCA 2024) (citation and quotation omitted). This applies to settlement agreements that are governed under contract law principles. Portner, supra. “Emails between attorneys can constitute an enforceable settlement agreement.” Id. Sometimes, a party may have “buyer’s remorse” and refuse to sign a settlement agreement. This fact alone does NOT mean there is not a...

10 March

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Personal Jurisdiction’s Two Prong Inquiry

Posted by David Adelstein

in Appeal, Trial Perspectives

If you are suing a nonresident defendant, i.e., you are NOT located in Florida, this two-step inquiry to determine whether Florida courts have personal jurisdiction over you--the nonresident defendant--is important: Florida courts conduct a two-step inquiry to determine whether a court has personal jurisdiction over a nonresident defendant. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements. The first prong -- i.e., the statutory prong -- … is governed by Florida's...

03 March

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Take Time Crafting Your Verdict Form

Posted by David Adelstein

in Trial Perspectives

Take time to properly craft YOUR special interrogatory verdict form. This is the verdict form that goes back with the jury to answer in rendering its verdict. The questions, instructions, and the order of the questions in the verdict form need to flow and make sense. In a recent property insurance coverage dispute, a jury rendered a verdict on a special interrogatory verdict form. The special interrogatory verdict form was, perhaps, not a model of perfection in asking the jury questions to answer. In answering the verdict form, the jury answered the 5th question “yes” that the insurer established that the damage...

25 February

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Attorney’s Fee Awards

Posted by David Adelstein

in Evidence, Expert Testimony

Attorney's fee awards can be frustrating. The reason being is the award is based on a mini-bench-trial after the trial aimed at determining reasonableness of the attorney’s fees. An expert, i.e., another lawyer, is required to opine as to the reasonableness of the attorney’s fees. Fees are not just rubberstamped and banking on recovering 100% of the attorney’s fees incurred is probably not realistic. In fact, you should not “bank” on that mindset when determining whether to settle the attorney’s fees or the dispute. A recent case, Kovar Law Group, PLLC v. Jordan, 49 Fla.L.Weekly D431a (Fla. 2d DCA 2024), touches...

13 January

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Trial Court / Judge Cannot Act as the Seventh Juror

Posted by David Adelstein

in Appeal, Evidence

The trial judge cannot act as the seventh juror. What does this mean? Read on...

07 January

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Attorney’s Fees only Flow to Plaintiff-Payee in Statutory Worthless Check Claim

Posted by David Adelstein

in Trial Perspectives

Florida Statute s. 68.065 is Florida’s worthless check statute – it creates a statutory cause of action against the payor of the worthless check. It further provides a statutory basis for attorney’s fees to the plaintiff-payee that prevails on the worthless check claim. Fla.Stat. s. 68.065(6) (“Other provisions notwithstanding, the maker or drawer is liable to the payee for all attorney fees and collection costs incurred by payee as a result of the payee’s claim.”). Well, what if the payee loses and the defendant-payor prevails on the worthless check claim – does the defendant get attorney’s fees? This was the...

03 December

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Insurer’s Claim File Not Categorically Privileged

Posted by David Adelstein

in Appeal, Discovery

A recent appeal (petition for a writ of certiorari) in a property insurance coverage dispute supports two important points regarding discovery disputes in insurance coverage cases, particularly regarding an insurer's claim file. First, “certiorari review is appropriate for discovery dispute orders requiring production of allegedly privileged documents.” Homeowners Choice Property & Casualty Ins. Co., Inc. v. Thompson, 48 Fla.L.Weekly D2218e (Fla. 1st DCA 2023). Second, there is NOT a categorical privilege on an insurer’s claims files. “Documents in claims and underwriting files are not automatically work product. The insurer did not argue or prove that the requested documents were prepared in anticipation...