Harold Silver, P.A. v. Farmers B T

8 Citing cases

  1. Pin-Pon Corp. v. Landmark Am. Ins. Co.

    500 F. Supp. 3d 1336 (S.D. Fla. 2020)   Cited 10 times
    Concluding arguments were waived when party did not address them in its briefing

    Noting that § 624.155 did not specify the standard of recovery for mental and emotional anguish damages, the Florida Supreme Court determined that it "must narrowly construe the scope of recovery for such damages," given the presumption that a statute in derogation of the common law "was not intended to alter the common law other than as clearly and plainly specified in the statute." Id. at 393 (citing S. Attractions, Inc. v. Grau , 93 So. 2d 120 (Fla. 1956) for the proposition that a "statute in derogation of the common law must be strictly construed" as well as Ady v. Am. Honda Fin. Corp. , 675 So. 2d 577 (Fla. 1996) and Law Offices of Harold Silver, P.A. v. Farmers Bank & Tr. Co. , 498 So. 2d 984 (Fla. 1st DCA 1986) for the proposition that a "statute designed to alter the common law must speak in unequivocal terms"). Both cases were before the Florida Supreme Court on certified questions from the United States Court of Appeals for the Eleventh Circuit.

  2. Dadeland Depot v. St. Paul

    945 So. 2d 1216 (Fla. 2006)   Cited 109 times   1 Legal Analyses
    Holding that although insurer was precluded from reasserting its affirmative defenses that were previously rejected in arbitration proceedings, insurer “should not be denied the opportunity to present the factual bases for those affirmative defenses as support for its present defense” that it was not acting in bad faith, because “it is necessary for a court faced with a section 624.155 action to consider the entirety of the factual scenario underlying the plaintiff's claim when determining whether the defendantinsurer acted in bad faith and any recoverable damages related to that bad faith.”

    A court will presume that such a statute was not intended to alter the common law other than as clearly and plainly specified in the statute. Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla. 1996); Law Offices of Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986) (statute designed to alter the common law must speak in unequivocal terms). Florida common law did not permit first party claims in which an insured contended that its insurance company was acting in bad faith for refusing to pay for benefits under the policy.

  3. Time Insurance Company, Incorporated v. Burger

    712 So. 2d 389 (Fla. 1998)   Cited 46 times
    Noting that relationship between insurer and insured is that of debtor-creditor

    A court will presume that such a statute was not intended to alter the common law other than as clearly and plainly specified in the statute. Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla. 1996); Law Offices of Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986) (statute designed to alter the common law must speak in unequivocal terms). To allow recovery of compensatory damages for mental anguish on the basis of lay testimony would subject health insurers to such claims every time such an insurer contested a claim.

  4. Thornber v. City of Ft. Walton Beach

    568 So. 2d 914 (Fla. 1990)   Cited 132 times   2 Legal Analyses
    Holding that, in general, the defendant is the prevailing party when the plaintiff voluntarily dismisses its suit and that " determination on the merits is not a prerequisite to an award of attorney's fees"

    The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. City of Hialeah v. State ex rel. Morris, 136 Fla. 498, 183 So. 745 (1938); Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986); Sand Key Associates, Ltd. v. Board of Trustees of Internal Improvement Trust Fund, 458 So.2d 369 (Fla. 2d DCA 1984). Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law.

  5. Vause v. Bay Medical Center

    687 So. 2d 258 (Fla. Dist. Ct. App. 1997)   Cited 20 times
    Invoking en banc jurisdiction to consider propriety of grant of motion to dismiss "where the affirmative defense does not appear on the face of the prior pleading," clarify immunity rule based upon whether fellow employees "were not engaged in unrelated works," and explain exception to fellow employee immunity for acts of willful and wanton disregard or gross negligence

    Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). See also Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to dismissal on the basis of the affirmative defense. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994); Board of County Commissioners of Polk County, Fla. v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So.2d 2 (Fla. 1993); Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992).

  6. Noonan-Judson v. Surrency

    669 So. 2d 1058 (Fla. Dist. Ct. App. 1996)   Cited 3 times
    Reversing final judgment determining appellant elected remedy by foreclosing note and mortgage and thus was not entitled to relief requesting express, resulting or constructive trust, in part because defendant had failed to plead election of remedies as affirmative defense

    First, Surrency failed to plead this doctrine as an affirmative defense and the court's inquiry was framed by the pleading. Des Rocher Watkins Towing Co. v. Third Nat'l Bank, 106 Fla. 466, 143 So. 768 (1932); Harold Silver, P.A. v. Farmers Bank Trust Co. of Kentucky, 498 So.2d 984 (Fla. 1st DCA 1986); Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975); First Bank Trust Co. v. Mellay, 156 So.2d 518 (Fla. 2d DCA 1963). Where an issue is not presented by pleading or litigated by parties during a hearing, a judgment based on that issue is voidable on appeal. Cortina v. Cortina, 98 So.2d 334 (Fla. 1957). Second, because the remedies are not inconsistent, the doctrine of election of remedies does not apply in this case.

  7. Hollar v. Int'l Bankers Ins. Co.

    572 So. 2d 937 (Fla. Dist. Ct. App. 1991)   Cited 16 times
    In Hollar v. International Bankers Insurance Company, 572 So.2d 937, 939 (1990), the Third District rejected an insurer's "self-serving reading of the term `damages' as being confined to policy limits.

    Statutes intending to alter the established case law must show that intention in unequivocal terms. Law Offices of Harold Silver, P.A. v. Farmers Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). The legislature is presumed to know the existing law at the time it enacts a statute.

  8. Boyd v. Panama City Boat Yard, Inc.

    522 So. 2d 1058 (Fla. Dist. Ct. App. 1988)

    While the sale passes ownership of the property, it does not establish the legitimacy of the underlying debt or of the lienor's conduct. While not on all fours with the instant case, we find our opinion in Law Offices of Harold Silver, P.A. v. Farmer's Bank Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986) to be instructive. In Silver a writ of execution had issued pursuant to a judgment in favor of Silver. Farmer's Bank intervened in the pending execution sale, claiming a superior interest in a certain automobile.