Yesterday, the Third District Court of Appeal issued its long-awaited opinion in Kenz v. Miami-Dade County and Unicco Service Co., Case No. 3D12-571 (Fla. 3d DCA, April,24, 2012), in which the appellate court addressed the issue of whether Florida Statute 768.0755 is retroactive. Section 768.0755 addresses the burden of proof in slip and fall cases and specifically provides that the plaintiff has the burden of proof to demonstrate that the defendant premises owner or possessor was negligent in failing to exercise reasonable care in the maintenance of its premises. Prior to the enactment of this statute in 2010, Florida Statute 768.0710 provided that the defendant had the burden of proof to demonstrate that its mode of operation of the premises was not negligent. That statute was entirely repealed in 2010, when Florida Statute 768.0755 was enacted.Read More
Archive by Month: April 2013
In Cevallos v. Rideout, 37 Fla. L. Weekly S739 (Fla., Nov. 21, 2012), the Supreme Court addressed a conflict of decisions between the Fourth and First District Courts of Appeal on the issue of whether, in a rear-end collision case, the only means of rebutting the presumption that the rear driver was negligent was evidence of negligence on the part of the front driver. In resolving the conflict, the Court held that as long as there is evidence that the rear driver was not the sole proximate cause of the accident, the presumption has been rebutted and the issues of the parties’ comparative fault and causation are for the jury.
In Ergas v. Universal Property and Casualty Ins. Co., 38 Fla. L. Weekly D900 (Fla. 4th DCA, April 24, 2013), the Fourth District Court of Appeal addressed the issue of whether a homeowner’s property insurance policy exclusion for “wear and tear, marring, deterioration” excluded coverage for the insureds’ claim for damage to their tile floor caused when an insured dropped a hammer on the floor, causing it to chip. The insureds argued that the term “marring” was ambiguous because it was not defined in the policy and that, in the context of the exclusion, the term contemplated damage gradually occurring over time. In response, Universal argued that none of the terms in the exclusion required interpretation by reference to the others. The appellate court affirmed summary judgment in favor of the carrier, finding that the exclusion for “marring” applied to exclude coverage for the insureds’ claim.Read More