Wednesday, October 27, 2010

3d DCA Watch -- "I Dissent."

Ho hum, another day another time traveler in drag talking on a cell phone in a 1928 Charlie Chaplin film.

Let's jump right into the bunker, shall we, we've got a full docket today:

Greenberg v. Schindler:

Judge Trawick gets it wrong on a slip and fall:
At trial, the court excluded evidence of various reports showing prior problems with the subject escalator, and denied Greenberg’s request for a jury instruction on negligence per se. Over Greenberg’s objection and motion for mistrial, the trial court permitted defense counsel to argue there was no evidence of prior problems with the escalator.

Dr. Gart, a doctor specializing in physical medicine, rehabilitation, and pain management, testified on behalf of Greenberg. Although he is not a surgeon, Dr. Gart opined that Greenberg would require back surgery in the future. However, the trial court did not allow Dr. Gart to give his opinion regarding future surgery because he was not a surgeon.
Yeah so, what's the problem?

Master Tech v. Mastec:

A contractor doesn't want to pay its sub for satellite dish installation because it "discovered" the sub is not a licensed electrician.

Judge Salter, however, finds something fishy in Mastec-land:
[T]his case is one in which a contractor (appellee, Mastec) attempts to take financial advantage of its own subcontractor (appellant, Satellite), requiring a particularly skeptical look at Mastec’s “discovery” that its own subcontractor lacks the allegedly-necessary electrician’s license. Mastec made no showing that it had either (a) reimbursed the consumers for the services performed by Satellite but paid for through DirecTV to Mastec (attaching satellite dishes to residences and apartments, and making service calls to help DirecTV customers operate or replace their satellite television recorders and receivers), or (b) sent a licensed electrician to those homes and apartments to be certain that the work done by Satellite conformed to the allegedly-applicable codes.
Licensed electrician?  Why should that matter -- it's Miami!

Pineda v. State Farm:

Judge Schwartz dissents from a "modest" award of attorney's fees in connection with an insurance appraisal under section 627.428:
....I believe that their attorneys’ alleged efforts in the Circuit Court were (a) entirely unnecessary and gratuitous (b) resulted in no practical benefit to the client, or (c) both. In these circumstances, I do not believe that they are entitled even to the “modest” – actually minimal or nominal – award which is contemplated by the majority.
You know what, I agree.  In fact I think these lawyers ought to pay State Farm after Hurricane Wilma wrecked their clients' home and then State Farm low-balled them by $80 grand.

United Auto v. Libman:

United Auto's suit against ubiquitous PIP attorney Michael Libman revived.

This one could be serious:
Prior to the underlying lawsuit, Libman had received monies from United Auto as part of several PIP lawsuits.1 Some time after the resolution of the PIP lawsuits, United Auto filed a new and separate lawsuit against Libman alleging that its own investigation revealed false billing for tasks performed by a nonlawyer medical billing company, Continental Providers’ Services (“Continental”), improper fee-splitting with Continental after payment, and false prosecution of several PIP lawsuits without authority from the putative plaintiffs. The trial court dismissed United Auto’s complaint with prejudice on grounds that it stemmed from the PIP lawsuits and, as such, had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements. United Auto appeals the dismissal of the counts for restitution and fraud. We reverse.
I wonder if a separate suit is the right format for these types of allegations.

If the fees were awarded in a prior case, and they were allegedly improper, shouldn't you have to go back and ask that court to vacate that fee order?

Olimpia v. Preferred Care:

Judge Shepherd is his usual eloquent self in this well-reasoned and persuasive dissent, the entirety of which appears below:
SHEPHERD, J., dissenting.

I dissent.
(Note to 3d DCA webmaster -- maybe the tubes ate the good Judge's opinion?)


Anonymous said...

I wish every opinion from Shepherd was like that.

Anonymous said...

Hank Adorno suspended!

Gideon said...

This can't have effect in reality, that's what I think.
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