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Florida Decision Weekly Wrap-up 04/23

April 26, 2010

Florida Decision Weekly Wrap-up 04/23

CARAFFA, et al. vs. CARNIVAL CORPORATION. Case No. 3D09-1998. 3rd DCA. April 21, 2010.

[Torts. Civil Procedure. Forum Non Conveniens]

The Plaintiff in the underlying action alleged her deceased husband died as a result of asbestos exposure while working on Carnival cruise ships. Carnival filed a motion to dismiss based, among other things, on a forum non conveniens argument. Carnival later stated in discovery that it was not pursuing dismissal on that ground. Discovery proceeded and the case was set for trial 5 different times. One thousand days after the case was filed, Carnival again filed a motion to dismiss based on forum non conveniens. The Circuit Court for Miami Dade County granted the motion. The 3rd DCA reversed holding that the motion was filed well beyond the sixty-day time limitation period set forth in rule 1.061(g). The Court stated that “[u]ntimely served motions to dismiss for forum non conveniens should be denied, but particularly so when the parties have expended significant resources” (citations omitted), noting that the underlying lawsuit was ongoing for more than three years before the trial court ruled on the motion to dismiss. During that time, the parties conducted discovery and expended time and resources. The 3rd DCA held that that there was no justification for the delay and that Carnival’s conduct was consistent with the voluntary and intentional relinquishment of its right to file a motion to dismiss based on forum non conveniens.

MENENDEZ, JR., et al. vs. PROGRESSIVE EXPRESS INSURANCE CO., INC. Case No. SC08-789. Florida Supreme Court. April 22, 2010.

[Insurance. Personal Injury Protection. Retroactive Application of Statute]

The Plaintiff in the underlying action was injured in an auto accident. She had an insurance policy with the Defendant that included personal injury protection. After the policy was issued, the Florida legislature changed the presuit notice requirements of the Motor Vehicle No Fault Statute.

The issue presented in the case was whether the new statute should apply retroactively. The trial court held that the statute should not apply retroactively and the Court of Appeals reversed. In this decision by the Florida Supreme Court, the Court applied a two-pronged test: 1. whether the Legislature intended for the statute to apply retroactively and 2. if such an intent was clearly expressed, whether retroactive application would violate the Plaintiff’s constitutional rights (citations omitted). The Court concluded that the Legislature intended for the statutory presuit notice provision to be applied retroactively. However, it found that that revised statute “attaches new legal consequences to events completed before its enactment” (citation omitted).  The Court agreed with the insureds that the statute could not be applied retroactively because the changed provisions of the statute were substantive rather than procedural and retroactive application would therefore violate the Plaintiff’s constitutional rights.

PRINCE, et al. v. MALLARI. Case No. 5D09-2365. 5th DCA. April 23, 2010. .

[Torts. Civil Procedure. Medical Examinations]

The Plaintiff in the underlying action suffered injuries to her neck, back and foot in an accident and sued the Defendants who served her with a notice for a compulsory medical exam (CME). The notice included a statement that: “If the plaintiff videotapes the examination, Defendant will also videotape the examination, at its expense.” The Plaintiff objected to the notice as it related to the Defendant’s videographer being present at the CME. The Orange County Circuit Court ordered the Plaintiff to submit to CME in the presence of the Defendants’ videographer. The Plaintiff filed a motion to quash the order.

The 5th DCA quashed the order, holding that “although the defense has the right, by rule, to a compulsory medical examination of a plaintiff, defense counsel does not have the right to be present at the examination” (citation omitted) and “Defense counsel cannot do by proxy what they are not permitted to do in person” (citations omitted).

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