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The Briefing

Monthly Archives: May 2019

Florida’s Expert Witness Standard: Daubert Reigns Supreme (Again)

Florida’s Expert Witness Standard:  Daubert Reigns Supreme (Again)

(This post assumes a general understanding of the Frye and Daubert standards.  For a detailed explainer, click here.) Daubert is again the standard for admission of expert witness testimony and evidence in Florida state courts, displacing the Frye standard.  Daubert limits the admission of so-called “pure opinion testimony” from expert witnesses. Since 2013, Florida’s standard for determining the admissibility of expert witness testimony and evidence has fluctuated.  After decades following the more permissive Frye standard, in 2013, the Legislature amended the Florida Evidence Code by adopting the more robust Daubert standard. Daubert and its progeny had controlled expert testimony in the federal courts and at least 36 state courts for over 20 years. But in response to the Legislature’s amendment, the Supreme Court of Florida concluded, in a rule-making opinion, that the Legislature had infringed upon the Supreme Court’s rulemaking authority by passing the amendment. The Florida Supreme Court explained that the amendment was procedural in nature, and therefore could only be changed by the court. Additionally, after considering the extensive briefings, oral arguments, public commentary, a Report of the Florida Bar’s Code and Rules of Evidence Committee, and extra jurisdictional case law study, the Florida Supreme Court reasoned that that Daubert’s broad applicability to all expert testimony (as opposed to Frye’s limitation to “new and novel” methods) posed “grave constitutional concerns” about access to courts and the expense of litigation on the parties and the judicial system.  The Court’s reasoning seemed at odds with greater than twenty years’ worth […]

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Gov. Ron DeSantis OKs Bill On Assignment of Benefits Reform

Gov. Ron DeSantis OKs Bill On Assignment of Benefits Reform

            After 7 years of failed attempts, Governor Ron Desantis recently signed a bill to reform Assignment of Benefits (“AOB”) in Florida.  In general, AOB agreements allow policyholders to give up their insurance contract rights to third-parties in exchange for quick repairs and relief from the hassle of dealing with claims.             In recent years, many contractors have taken advantage of Florida’s unique one-way attorney’s fee-shifting statute for insurance coverage litigation.  The rule incentivized contractors to, via the AOB mechanism, charge property owners’ outrageous amounts and to then pursue needless, often frivolous, and expensive litigation against insurance companies.             According to the new bill, an AOB must: (1) Be in writing and executed by and between the assignor and the assignee; (2) Contain a provision that allows the assignor to rescind the assignment agreement without a penalty or fee by submitting a written notice of rescission signed by the assignor to the assignee within 14 days after the execution of the agreement, at least 30 days after the date work on the property is scheduled to commence if the assignee has not substantially performed, as at least 30 days after the execution of the agreement if the agreement does not contain a commencement date and the assignee has not begun substantial work on the policy; (3) Contain a provision requiring the assignee to provide a copy of the executed assignment agreement to the insurer within 3 business days after the date on which  the assignment agreement is executed or the […]

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