Barbara Green

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(305) 529-1101Call Visit WebsiteVisit Website Map & DirectionsDirections300 Sevilla Ave Ste 209Coral Gables, FL 33134 Write a ReviewWrite Review

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Phone: (305) 529-1101

Address: 300 Sevilla Ave Ste 209, Coral Gables, FL 33134

Website: http://caselawupdate.com

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Barbara Green

Adoption
Guardianship
The patient, an illegal alien, suffered severe brain damage and the hospital intervened in his guardianship to try to discharge him so he could be transferred to a hospital in Guatemala, where his family resided. The court held that a letter from a Guatemalan official was inadmissible hearsay and could not be relied on to justify the transfer. The only admissible testimony about what treatment was available in Guatemala was that no appropriate treatment was available. Furthermore, the trial court lacked subject matter jurisdiction to authorize the deportation of the patient to Guatemala.
Child Abuse
In an action against an archdiocese involving sexual abuse by a priest, the plaintiff was entitled to portions of a psychological evaluation of the non-party priest which pertained to child abuse, even though they did not relate to abuse of the plaintiff. Section 90.503(2) provides for a psychotherapist-patient privilege. That section is limited, however, by §39.204, which states that the privilege “shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect...” The exception to the privilege is not limited to situations where the allegedly abused child is a party in the case.

Wrongful Death
An arbitration agreement signed by the decedent requires his estate and survivors to arbitrate their wrongful death claims with the nursing home. A wrongful death action is derivative of the decedent’s rights. The estate and heirs stand in the shoes of the decedent for purposes of whether the defendant is liable and are bound by the decedent’s actions and contracts with respect to defenses and releases.
Sex Crimes
The Florida Sheriffs’ Self-Insurance Fund had no duty to cover or defend a jail inmate’s claim against a sheriff for damages arising out of a sexual assault by one of the sheriff’s employees. The policy covers incidents “growing out of the law enforcement duties of the covered member.” There must be some causal connection between the sexual assault and the law enforcement duties of the tortfeasor. Although the deputy illegally used his position as a pretense to place the plaintiff in a position where he could sexually assault her, his law enforcement duties ended when he coerced an inmate of the jail to have sex with him. Therefore, the sexual assault was not within the law enforcement duties and was not covered.
Fraud
This was one of many actions involving the fungicide, Benlate, which allegedly destroyed the plaints in plaintiffs’ nursery. The 3d DCA held that the trial court properly directed a verdict on their civil RICO claims, under §772.104, Florida Statutes. The plaintiffs were not injured by the defendant’s activities in the criminal “predicate” acts underpinning the RICO claim. Showing the violations of mail fraud or wire fraud statutes, without showing that the plaintiff was injured by those violations, is not enough. The plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of the scheme. Indirect injuries are not enough. The plaintiffs presented no evidence that they saw or heard any of the communications which constituted thee predicate acts proved at trial.
Robbery
The impact rule barred the plaintiff’s claim for negligent infliction of emotional distress, where the plaintiff, an invitee, alleged that as a result of the defendant’s negligent security, she was a victim of an armed robbery. She was not physically injured but suffered serious psychological injury, which was treated with various medications. The court held that the side effects from the medications did not satisfy the impact rule.
Theft
Assault
Murder
Here, the trial court did not abuse it discretion in allowing the prosecutor to use a knife and Styrofoam head as demonstrative exhibits during the victim’s testimony and closing argument. The prosecutor, during closing argument, repeatedly inserted a demonstrative knife into a Styrofoam representation of the victim’s head, on which the victim’s wounds were marked, and asked the jury to “compare the diverse insertions when addressing appellant’s intent.” The record did not show any inaccuracy of the prosecutor’s replication of the stabs, or that he used excessive force or was in any way inconsistent with the evidence of the victim’s multiple stab wounds. The court found “no fundamental error or undue prejudice,” in light of the inadequacy of the record, the court’s instruction that the attorneys’ arguments are not evidence, and the jury’s decision to acquit the defendant on the attempted murder charge and convict the defendant only of the lesser included offense of aggravated battery.
Hit and Run
An insurance policy’s UM coverage applied to injuries resulting from an accident caused by a steel beam of unknown origin that was lying in the road. The only plausible source of the beam was that it fell out of an unidentified truck. Therefore, the truck was “a hit and run vehicle whose operator or owner cannot be identified and which hits or which causes an accident result[ing] in bodily injury without hitting” the insured’s car.

Business and Corporate Law

Business Transactions
Section 768.73, Florida Statutes (1995), limits punitive damages to three times the compensatory damages except where there is clear and convincing evidence to justify more. (The statute was subsequently amended to make it much more complicated). The statute applies to specific kinds of cases, including those involving “misconduct in commercial transactions.” §768.73(1)(a). In this case, the plaintiff alleged the defendant, a car dealer falsely told him the car he was buying had never been in an accident. The court held that the transaction was a “consumer transaction,” not a commercial transaction, and therefore the statutory limit on punitive damages did not apply. The court certified to the supreme court the question...
Trade Secrets
Antitrust

Workers Compensation
When the Supreme Court first enacted the rule in Mandico v. Taos Constr., Inc., 605 So.2d 850 (Fla. 1992), the language was a little bit confusing. The Court subsequently amended it to provide that the district courts of appeal may review orders that “determine... that, as a matter of law, a party is not entitled to workers compensation immunity.”
Employment Discrimination
Although the Dade County Code used to provide a private cause of action for employment discrimination, the court holds that a subsequent amendment eliminated it. The court also holds that verbal abuse and disparate treatment based on plaintiff’s sexual orientation would constitute “objectionable and offensive conduct,” but are not sufficiently outrageous to support a claim for intentional infliction of emotional distress.
Employment Contract
An employee's whistleblower claim was required to be arbitrated where the arbitration clause in the employment agreement provided for arbitration of "any controversy or claim between the Executive and the Corporation arising out of or relating to this Agreement."
Severance Agreement
Sexual Harassment
En banc, the 5th DCA finds evidence adequate for the jury in a sexual harassment - hostile work environment case. Florida has strong policy on sexual harassment and the statute is to be liberally construed.

Premises Liability
Premises liability is usually based on the right to control the premises. Usually, but not always, the lessee controls the premises. However, in some cases, the lessor controls it, and in some cases, the control is jointly held by the lessor and the lessee; in such cases, both can be liable for an injury to someone on the premises.
Construction Litigation
A surety on a performance bond for a construction contract is required by §627.428 to pay attorneys fees in excess of the face amount of the bond, in an action by a contractor against a subcontractor and the subcontractor’s surety for breach of the subcontractor’s contract.
Property Damage
The 5th DCA reduced a judgment against a vehicle owner in excess of $12.8 million to $600,000. The owner’s liability was purely vicarious. The court cited §324.021(9)(b)(3), Fla. Stat. That section provides: “The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.”

Personal Injury
An attorney representing a client on a contingency basis in a personal injury case, who withdrew because the client was “difficult,” was not entitled to any fee when the case was settled by another lawyer. Where withdrawal is upon the attorney’s own volition, he forfeits his right to compensation unless the client’s conduct makes continued representation legally impossible, or would cause the attorney to violate an ethical rule.
Medical Malpractice
Many of you have filed comments to the “Grimes Petition.” The petition asks the Court to enact an ethics rule limiting plaintiffs’ attorneys fees in medical malpractice cases. The Court required everyone filing comments to file original and nine copies with the court, with a certificate of service showing service on John Harkness, Executive Director of the Florida Bar, and on Stephen Grimes. Electronic copies of all comments must also be filed. On October 12, the Court issued an order listing those whose compliance was somehow deficient, and allowing until November 1 for full compliance.
Auto Accidents

Trusts and Estates

Trusts
An insurance agent arranged for a life insurance policy for a client, naming the TTSI Irrevocable Trust as beneficiary. On the application, it listed the relationship between the insured and beneficiary as “family trust;” in reality there was no family relationship. Because the Trust had no insurable interest in the insured’s life, the policy was void ab initio and the Trust was not entitled to a refund of premiums. Because the insurance agent is also a licensed attorney, the court sent a copy of its opinion to the Florida Bar.
Power of Attorney
A nursing home patient had given her brother a durable power of attorney which authorized him, among other things, to pursue actions for “liquidated or liquidated” damages. The brother signed a nursing home arbitration agreement. The nursing home argued that the phrase was obviously a typo and that it should be interpreted to say “liquidated or unliquidated.” The trial court held that the power of attorney clearly authorized the brother to pursue only actions for liquidated damages and refused to compel arbitration.
Probate

Bankruptcy
Foreclosure
The assignee of a note and mortgage did not have standing to sue an attorney for malpractice for his untimely filing of a foreclosure action, where the assignment did not take place until the appeal from the dismissal of the foreclosure action was pending. The court reiterates the limited assignability of legal malpractice claims. The court rejects the argument that the assignment occurred incident to the assignment of the note and mortgage. Moreover, the assignee did not gain standing by forming an attorney-client relationship with the attorney during the appeal from the dismissal of the foreclosure. Standing cannot be acquired by establishing an attorney-client relationship after the malpractice has occurred.
Tax Law

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