Injury Law Updates:

Week of July 1st

First DCA

None Discussed This Week.

Second DCA 

None Discussed This Week.

Third DCA

R.J. Reynolds Tobacco Co., et. al. v. Lacey (No. 3D19-578) – Wrongful Death

Ray Lacey filed a lawsuit against R.J Reynolds and other tobacco companies for heath conditions associated with tobacco use.  Ten years after litigation began, Mr. Lacey died.  Following his death, Mr. Lacey’s counsel withdrew from the case.  After Mr. Lacey’s counsel withdrew from the case, R.J. Reynolds filed a suggestion of death.  The filing of the suggestion of death triggered Florida Rule of Civil Procedure 1.260 which provides that upon the death of a party, they must be substituted by their successor or representative within 90 days after the filing of the suggestion of death.  If no such substitution is granted, the action shall be dismissed as to the deceased party.

When no such substitution was received within 90 days, R.J. Reynolds moved to dismiss the case.  Mrs. Lacey wrote the court as to various issues which prevented her from seeking counsel and asking for an extension to retain a lawyer.  This request was granted by the court. However, after the date of the extension passed, R.J. Reynolds again moved to dismiss the case. An attorney for Mrs. Lacey informed the court he had his own health related issues which prevented him from filing his notice of appearance but that the substitution was underway, albeit incomplete at that moment.  The trial court, after receipt of that information, denied R.J. Reynolds’ motion to dismiss. R.J. Reynolds filed a petition for certiorari seeking to quash the trial court’s order and argued that Florida Rule of Civil Procedure 1.260 required dismissal.  

The Third District affirmed the trial court’s order and denied R.J. Reynolds’ petition.  In so doing they highlighted the fact that parties can seek extra time to file the substitution of party under proper conditions.  They then noted that Mrs. Lacey and her attorney each had health conditions and other factors which prevented timely filing of the substitution.  The court then also reminded R.J. Reynolds that Florida courts favor cases being disposed of on their merits.  The court further reiterated that Florida Rule of Civil Procedure 1.260 has been liberally interpreted to allow substitution of deceased parties after 90 days and the trial court ruled appropriately.

Arguelles v. Citizens Property Insurance Corporation (No. 3D17-2021) – Insurance Coverage

Donato Arguelles purchased a property in Florida and had it insured with Citizens in 2013.  The Citizens homeowner’s policy stated it would cover the Florida property while he was a resident there.  Ten (10) months after securing insurance on the property, Mr. Arguelles moved out of the property and began renting it to two tenants.  In 2016, one of the tenants informed Mr. Arguelles of a water leak. Mr. Arguelles then notified Citizens of the leak and requested coverage under his policy.  Citizens denied the request and Mr. Arguelles filed a lawsuit seeking coverage.

During the lawsuit Citizens learned that Mr. Arguelles had moved out of the property at the end of 2013.  Citizens then moved for summary judgment based on Mr. Arguelles’ admission that he no longer resided at the Florida property at the time of loss.  The trial court granted Citizens’ motion and Arguelles appealed claiming 1) the policy language did not require actually residency and 2) that Citizens had waived or was otherwise estopped from raising the residency issue.

The Third District found that the policy of insurance was clear and unambiguous as it related to the residency issue.  The policy covered the property as long as Mr. Arguelles was a resident. As he was not a resident at the time of loss, the coverage did not apply.  The court similarly discarded Mr. Arguelles’ assertion of waiver and estoppel since Citizens’ was not aware that Mr. Arguelles was no longer a resident until its post-loss investigation.  Since premium checks were accepted without knowledge that Mr. Arguelles was no longer a resident, they had not waived that issue.

The Third District affirmed the trial court’s order.

 Fourth DCA

None Discussed This Week.

Fifth DCA

None Discussed This Week.

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About Injury and Wrongful Death Attorney Justin H. Presser

Justin H. Presser is an award-winning attorney and founder of Presser Law, P.A. representing clients in the areas of personal injury, car accidents, motorcycle accidents, wrongful death and more.  With an office located in Altamonte Springs, Florida, Presser Law, P.A., proudly services clients throughout Central Florida including the following areas:  Orange County including Orlando, Ocoee, Doctor Phillips, Apopka, Winter Garden, Winter Park, Maitland, College Park, Thornton Park;  Seminole County including Altamonte Springs, Longwood, Winter Springs, Lake Mary, Oviedo, Casselberry, Chuluota;  Lake County including Clermont, Mount Dora, Eustis, Tavares, Leesburg, Sorrento; and Brevard County including Melbourne, Merritt Island, Cocoa Beach, Titusville, Palm Bay.

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