In Florida Farm Bureau Casualty Insurance Co. v. Willis and Katherine Mathis (First DCA: Van Nortwick, Lewis and Rowe), Hurricane Ivan in 2004 caused damage to the Mathis’ home.  Flood water rose over four feet.  The Mathis family had flood and wind policies.  The flood carrier paid limits.  The windstorm carrier declined to give policy limits.  A suit and trial ensued with a jury finding a constructive or actual total loss warranting policy limits.  The carrier appealed, claiming they were entitled to set off the flood payment.

There is potentially a lot in this case for insurance coverage lawyers.  The bottom line, however, is that the First DCA held that the policies were separate and that the Florida Valued Policy Law (Florida Statute 627.702(1)) did not require set offs.  Thus, the Mathis were to receive $250k (flood) and $295k (wind) on their two story house which had an estimated value between $400-500,000.  Thus, and pardon the pun a homeowner can collect under two separate policies even if there is a “windfall.”

The history of this issue started with a surprise 2008 decision from the Florida Supreme Court when it said in the Fields case that parents/guardians did not have the inherent authority to waive liability on behalf of children participating in commercial activity (e.g., motorcross, rides, boating, sports, safaris, etc.).  In 2009, spurred by Orlando theme parks, dive boat operators, motorsports venues and others, the Florida legislature tried but failed to pass a bill essentially “reversing” the court’s opinion.  See here for a brief overview.

The issue was revived again this year and it appears, from the coverage, that the bill succeeded due to a combined weakened perspective of the plaintiff bar and some concessions.

Senate Bill 2440 is here.  A solid history of the issues can be found in the staff analysis.

Highlights are:

* law amends Florida Statute 744.301 to allow parents/guardians to sign waivers releasing commercial activity providers from liability for injuries to children due to “inherent risks” (only)

* law creates a rebuttal presumption of no liability — it is not a bar to lawsuits nor it is grounds for a quick summary judgment

* many businesses have a hard time getting and maintaining the proper paperwork; the law requires certain releases with specific clauses or else it is invalid

* an attempt to make an overly broad release may invalidate the whole thing

* still no definition of a “commercial” vs. “noncommercial activity provider”

* law does allow “noncommercial activity providers” (whoever they are) total immunity under a valid pre-injury waiver

Back in 2006, a rather dramatic homeowner versus association battle was partially resolved in Berg v. Briddle Path Homeowners Association where the court addressed director and officer statutory immunity under the homeowner statute, Florida Statute Chapter 617.

The same issue arose, but was confronted more directly, in the recent case of Stephen and Marjorie Raphael v. Beach Point Condominium Association (Stevenson, Polen, and Gerber).  In this case, the condo owners were upset that balcony dividers were replaced with transparent dividers, thus reducing their privacy while allegedly improving other condo owners’ view.

To sue the condo board members directly, the plaintiff had to allege that there was fraud, criminal activity or self-dealing in order to overcome the directors’ statutory immunity in Florida Statute 607.831(1) and 617.0834(1).

The Panel held that there was no self-dealing or personal benefit simply because the board members voted for and approved alternations or improvements to the common areas which they, as owners, also enjoyed.

It appears not, according to T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair Inc. et al.

In this case, an employee of Wink was injured when he was working for Wink at T & S’ property.  The employee sued T & S, which promptly third party’ed in Wink claiming contribution.

Since 2006, however, Florida Statute 768.81 abolished joint and several liability.  Under the current law, the trial court can only enter judgment on the basis of a party’s percentage of fault.  Contribution can only be claimed by a party who has been made to pay more than its fair share.  So what happens with a contribution claim post-2006?

According to the Second DCA (Dakan, Altenbernd, and Fulmer), contribution claims were only allowed before because Rule 1.180 allowed third party actions against anyone who “is or may be liable.”  Courts were allowing contribution to be plead in the “main” tort case under this concept.

Not so now.  ”It is unlikely that T & S will be required to pay more than its pro  rata share” since F.S. 768.81(3) limits the trial court to judgment based upon a party’s fair share.  Thus, there’s no contribution claim — all pre-2006 cases are “not… overruled” but “they appear to have been rendered obsolete.”