• Personal Injury Liability, Design Standards, Slavin Doctrine, and Certorari Jurisdiction  Certiorari jurisdiction can arise where two parties in the same legal position move for summary judgment under the same theory and one party’s motion is granted but the other’s denied, leaving the denied party with a non-appealable final order denying summary judgment and an appealable grant of summary judgment based on the theory under which the denied party seeks to prevail. A vehicle became impaled on an uncushioned turnpike guardrail, killing the passenger. Suit was filed against the Department of Transportation, the guardrail designer, and the guardrail builder, alleging negligence for failure to remedy a dangerous condition not readily apparent to the public resulting from the improperly designed and constructed guardrail. The DOT had modified the guardrail to point inward, ostensibly obviating the need to follow design standards requiring crash cushions, and ignored requests from the designer and builder of the guardrail to install crash cushions pursuant to the proper design index. The designer and builder moved for summary judgment under the Slavin doctrine and Easterday v. Masiello, which precluded recovery against architects and/or engineers where a patent design defect injured a third party. The trial court granted summary judgment for the guardrail builder under Slavin, finding the exposed guard rail to be a patent defect that had been accepted by the DOT, but denied summary judgment for the designer, holding that the defect could not be viewed as patent for the designer. The order left the designer with a non-appealable denial of summary judgment and an appealable grant of summary judgment for the builder on the very ground the designer hoped to prevail. On appeal, the Fifth District Court of Appeal held these unique circumstances warranted granting certiorari, as the trial court applied the law differently to two defendants in the same legal position and left the designer with no adequate remedy at law. Reversed and remanded with instruction to enter judgment in favor of designer.Transportation Engineering, Inc. v. Cruz, No. 5D13-923, 2014 WL 5782251 (Fla. 5th DCA Nov.  7, 2014).
  • Attorney’s Fees, Voluntary Dismissal, and Settlement Offers – Recovery of attorney’s fees for a claim voluntarily dismissed without prejudice pursuant to a settlement is not permitted under Fla. Stat. 768.79, even when the voluntary dismissal was to one of two claims and the opposing party recovers fees for the surviving claim. Scherer Construction & Engineering of Central Florida, LLC v. The Scott Partnership Architecture, Inc., 39 Fla. L. Weekly D2339a (Fla. 5th DCA Nov. 7, 2014).
  • Attorney’s Fees Granted Pursuant to Settlement Agreement – Where a settlement agreement contains an award of attorney’s fees for “any legal action” brought to enforce the agreement, a court order merely approving the agreement and reserving jurisdiction to enforce same does not  automatically entitle the party to fees. There are two avenues to collect fees: (1) the party seeking fees serve a motion requesting fees within 30 days of judgment, pursuant to Fla. Rule 1.525, or (2) the court determines, in the judgment, the prevailing party’s entitlement to fees. Here, the trial court’s general reservation of jurisdiction in the order approving the settlement was insufficient to establish the second avenue, and the prevailing party failed to file a motion within 30 days to collect under the first. Accordingly, the denial of fees was affirmed. Margaret Finnegan, as executor of Estate of Ellen Dollen v. Noreen Compton, as Personal Representative of the Estate of Fredrick LaChance, 39 Fla. L. Weekly D2402b (Fla. 4th DCA Nov. 19, 2014).


  • Civil Procedure – Subject Matter Jurisdiction; Laborer Wage Claims - Subject matter jurisdiction is determined solely from the face of the complaint. While the Federal District Court for the Southern District of Florida can, under its local rules, require a plaintiff to file a “statement of claim” document to aid in judicial administration of Fair Labor and Standards Act claims, this document is not required under the Federal Rules of Civil Procedure and thus cannot be used to determine federal subject matter jurisdiction. It was therefore reversible error to dismiss plaintiff’s suit for lack of subject matter jurisdiction based on a failure to reiterate FLSA claims in the “statement of claim” where the claims were well pled in the underlying complaint. Calderon v. Baker Concrete Const., Inc., No. 14-10090, 2014 WL 6237008 (11th Cir. Nov. 14, 2014).