TORTS: PRODUCT LIABILITY: TOBACCO: ENGLE PROGENY CASES: FLORIDA RESIDENCE OR CITIZENSHIP, NOT BOTH, IS REQUIRED FOR MEMBERSHIP IN THE ENGLE CLASS: RESIDENCE IS DIFFERENT FROM CITIZENSHIP

Chacon v. Philip Morris USA, Inc., ___ So. 3d ___, 43 Fla. L. Weekly D2100 (Fla. 3d DCA September 12, 2018)
 

“The Engle class is defined as: ‘[a]ll Florida citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.’”  In a case of first impression, the Third District Court of Appeal held that residence or citizenship, but not both, is required to qualify for membership in the Engle class.  Residence and citizenship are different.  “Any place of abode or dwelling place constitutes a ‘residence,’ however temporary it may be . . . .”  Citizenship refers to domicile or legal residence.

CONSTRUCTION DEFECTS: STATUTE OF REPOSE: COMPLIANCE WITH THE PRE-SUIT NOTICE REQUIREMENT OF CHAPTER 558, FLORIDA STATUTES, CONSTITUTES AN ACTION FOR PURPOSES OF THE STATUTE OF REPOSE

Gindel v. Centex Homes, ___ So. 3d ___, 43 Fla. L. Weekly D2112 (Fla. 4th DCA September 12, 2018)
 

Section 95.11(3)(c), Florida Statutes, provides, “An action founded on the design, planning, or construction of an improvement to real property . . . must be commenced within 10 years after the date of actual possession of the owner . . . .”  Section 95.011, Florida Statutes, defines an “action” as a “civil action or proceeding.” Chapter 558, Florida Statutes, requires pre-suit notice of construction defects. In this case, the Fourth District Court of Appeal held that notice of defect, under Chapter 558, constitutes commencement of an action for the purposes of complying with the ten year statute of repose in construction defect cases.

ARBITRATION: THE DEFENDANT’S RIGHT TO COMPEL ARBITRATION WAS NOT REVIVED BY THE FILING OF AN AMENDED COMPLAINT THAT DID NOT ALTER THE SCOPE OR THEORY OF THE UNDERLYING LITIGATION IN AN UNFORESEEABLE WAY

Stankos v. Amateur Athletic Union of the United States, Inc., ___ So. 3d ___, 43 Fla. L. Weekly D2117 (Fla. 4th DCA September 12, 2018)
 

The plaintiffs’ minor son sustained a head injury during a Tae Kwon Do tournament sponsored by the Amateur Athletic Union (AAU).  The initial complaint asserted claims for negligence, misrepresentation and concealment, loss of filial consortium, and injunctive relief.  “AAU filed an answer and an amended answer to the initial complaint [and] engaged in extensive discovery [on] the merits of the case.” An amended complaint, filed more than one year after the initial complaint, added claims based on violations of Section 943.0438, Florida Statutes, and the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).  The defendant moved to compel arbitration after the amended complaint was filed, and the trial court granted the motion. The appellate court reversed. The defendant waived arbitration by answering the initial complaint and engaging in discovery on the merits of the case. The defendant’s right to compel arbitration was not revived by the filing of the amended complaint because it “[did] not alter the scope or theory of the underlying litigation in an unforeseeable way. . . .  The new claims [were] still directed toward the minor child’s injury and AAU’s safety practices.” The alleged violation of Section 943.0438 “provide[d] a possible basis for a finding of negligence per se based on the same core set of facts raised in the initial pleading,” and the FDUTPA claim resembled the claims for misrepresentation and injunction in the initial complaint.

SETTLEMENT: THE TRIAL COURT ERRED BY ENFORCING A SETTLEMENT AGREEMENT IN THE SAME JUDGMENT THAT INCORPORATED THE AGREEMENT

Marlin Yacht Mfg., Inc. v. Nichols, ___ So. 3d ___, 43 Fla. L. Weekly D2119 (Fla. 4th DCA September 12, 2018)
 

The owner sued the manufacturer for failing to complete construction of a sport fishing vessel.  After several years of litigation, the parties moved for final judgment incorporating a settlement agreement, and the owner moved for money damages based on the agreement.  The trial court simultaneously entered final judgment incorporating the settlement agreement and money damages for breach of the agreement. The appellate court reversed. “[I]ncorporation of the settlement terms into a judgment ends the litigation and limits the scope of the trial court’s jurisdiction. . . .  [T]he trial court should have incorporated the settlement terms into the final judgment and dismissed the lawsuit before determining whether the settlement terms had been breached.” The appellate court remanded for “a separate settlement enforcement hearing” after dismissal of the underlying action under the terms of the settlement agreement.

PUNITIVE DAMAGES: AN ORDER GRANTING A MOTION TO AMEND THE COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BECAUSE THE ORDER FAILED TO MAKE AN AFFIRMATIVE FINDING THAT THE PLAINTIFF PRESENTED A REASONABLE EVIDENTIARY BASIS FOR THE RECOVERY OF PUNITIVE DAMAGES

United Automobile Insurance Company v. Riverside Medical Associates, ___ So. 3d ___, 43 Fla. L. Weekly D2120 (Fla. 4th DCA September 12, 2018)
 

The Fourth District Court of Appeal granted the defendant’s petition for certiorari and quashed an order granting the plaintiff’s motion to amend the complaint to add a claim for punitive damages because the order “fail[ed] to make ‘an affirmative finding that the plaintiff made a ‘reasonable showing by evidence,’ which would provide a ‘reasonable evidentiary basis for recovering such damages. . . .’”  The court remanded for the entry of affirmative findings or further proceedings.

AMENDMENT: LEAVE TO AMEND WAS UNNECESSARY BECAUSE THE PLAINTIFF AMENDED AFTER THE DEFENDANT FILED A MOTION TO DISMISS

Albritton v. Barness, ___ So. 3d ___, 43 Fla L. Weekly D2142 (Fla. 2d DCA September 14, 2018)
 

The plaintiff filed a complaint.  The defendant moved to dismiss. The trial court granted the motion without prejudice.  The plaintiff filed a motion for leave to amend and an amended complaint. The trial court denied the motion and ultimately dismissed the complaint with prejudice.  The appellate court reversed. Leave to amend was unnecessary because the plaintiff filed the amended complaint before the defendant filed a responsive pleading. [A motion to dismiss is not a pleading.]   Although it could be argued that the plaintiff invited error by filing an unnecessary motion to amend, the defendant was at greater fault by “characteriz[ing] the amended complaint as ‘unauthorized’ because it was filed without leave of court.”  The Second District Court of Appeal reversed and remanded for further proceedings, including the entry of an order to show cause why the defendant should not be required to pay the plaintiff’s appellate attorney’s fees and costs as a sanction under Fla. R. App. P. 9.410 and Section 57.105, Florida Statutes.  Judge Badalamenti concurred in Judge Kelly’s majority opinion.  Judge Silberman concurred in only the result.

INSURANCE: DECLARATORY RELIEF IS UNAVAILABLE IF A CAUSE OF ACTION FOR BREACH OF CONTRACT EXISTS: AN ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING DOES NOT EXIST APART FROM A CAUSE OF ACTION FOR BAD FAITH UNDER SECTION 624.155, FLORIDA STATUTES: A CLAIM FOR FIRST PARTY BAD FAITH WAS PREMATURE BECAUSE LIABILITY UNDER THE POLICY HAD NOT BEEN ESTABLISHED

Cady & Cady Studios, Inc. v. State Farm Fire & Casualty Company, Case No. 1:18-cv-96-MW/GRJ (N.D. Fla. August 21, 2018)
 

The plaintiff filed an insurance claim for the theft of camera equipment from its office.  The defendant denied coverage based on two exclusions. The plaintiff sued for declaratory relief and breach of the contract.  Judge Mark Walker of the United States District Court for the Northern District of Florida dismissed the complaint without prejudice.  (1) An action for declaratory relief is equitable in nature. But the plaintiff was not entitled to equitable relief because an adequate remedy at law existed: damages for breach of contract.  (2)  The plaintiff’s claim for breach of contract alleged that the defendant violated its implied duty of good faith and fair dealing without “alleg[ing] that the Defendant breached any particular coverage provisions of the contract of insurance.  In Florida, however, a claim for general ‘breach of duty of good faith’ is not a viable cause of action in a first-party property claim for insurance proceeds. . . . Therefore, [the claim] as pled [did] not state a cause of action under Florida law.”  To the extent that the plaintiff sought to recover for bad faith, the claim was premature because (1) liability under the policy had not been established, and (2) notice and opportunity to cure had not been alleged.

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