Failure To Mitigate Damages

89 Florida cases classified under this topic · sorted by citation count · see the citation graph · browse and sort

• White v. Bloomberg
  501 F.2d 1379· 4th Cir.· 1974-07-18 ·cited 40×
  The court held that the district court erred in computing back pay without prior administrative determination or opportunity for the Postal Service to do so.
• Mihara v. Dean Witter & Co., Inc.
  619 F.2d 814· 9th Cir.· 1980-05-23 ·cited 36×
  The court held that the evidence supported the jury's findings of churning and breach of fiduciary duty, affirming the judgment.
• Tingley Sys., Inc. v. Healthlink, Inc.
  509 F. Supp. 2d 1209· M.D. Fla.· 2007-05-08 ·cited 29×
  The court denied defendant's motion for summary judgment and granted plaintiff's motion in part, finding disputed issues of material fact regarding breach of contract and copyright infringement claims.
• Chiu v. Wells Fargo Bank
  242 So. 3d 461· Fla. 3d DCA· 2018-03-28 ·cited 25×
  A trial court's failure to conduct a hearing on a summary judgment motion, as required by Florida Rule of Civil Procedure 1.510(c), constitutes fundamental error and denial of due process, requiring reversal regardless of whether the issue was preserved below.
• Lafferty v. Allstate Ins. Co.
  425 So. 2d 1147· Fla. 4th DCA· 1982-12-15 ·cited 24×
  Lorraine Lafferty appealed a $3,700 personal injury verdict against Allstate Insurance and others, challenging the trial court's admission of evidence regarding her failure to wear seat belts and the resulting instruction to the jury. The Fourth District reversed and remanded, ho
• Boca Golf View, Ltd. v. Hughes Hall, Inc.
  843 So. 2d 992· Fla. 4th DCA· 2003-04-30 ·cited 20×
  Boca Golf View appealed the entry of an involuntary dismissal of its breach of contract claim at the close of its case in a non-jury trial. The appellate court reversed, holding that the trial court improperly relied on an affirmative defense that was not pleaded to dismiss the c
• Henrion v. NEW ERA Realty IV, Inc.
  586 So. 2d 1295· Fla. 4th DCA· 1991-10-02 ·cited 18×
  This case involves a real estate broker's professional negligence in listing a property for sale. The jury found the broker 30% negligent and awarded damages of $345,000, but the trial court granted a new trial post-verdict and allowed the plaintiffs to amend their complaint to p
• Acosta v. Tenneco OIL Co. & Mobil Oil Corp.
  913 F.2d 205· 5th Cir.· 1990-09-18 ·cited 16×
  The court held that the district court abused its discretion by ordering the plaintiff to submit to an examination by a vocational rehabilitation expert or waive the right to call his own expert, as such an order is not authorized by Federal Rule of Civil Procedure 35.
• Rodeway Inns OF Am. v. Alpaugh
  390 So. 2d 370· Fla. 2d DCA· 1980-10-10 ·cited 16×
  Rodeway Inns appeals a judgment requiring it to pay mortgage installments on leased property even after the lessor terminated the lease and repossessed the premises. The court affirms, holding that the explicit lease language requiring Rodeway to continue mortgage payments surviv
• Neimark v. John H. Abramson & Lani Abramson
  403 So. 2d 1057· Fla. 3d DCA· 1981-09-08 ·cited 15×
  Neimark appeals from a judgment awarding the Abramsons damages for breach of an investment management agreement. The appellate court affirmed liability but reversed and remanded regarding the calculation of prejudgment interest and the award of costs.
• Thornton v. J Jargon Co.
  580 F. Supp. 2d 1261· M.D. Fla.· 2008-07-08 ·cited 14×
  Disputed issues of material fact preclude summary judgment on the copyright infringement claim, but the court grants summary judgment for defendants on plaintiff's claim for actual damages.
• Messer v. E.F. Hutton & Co.
  833 F.2d 909· 11th Cir.· 1987-12-07 ·cited 14×
  The court held that the plaintiff could not recover under Rule 10b-5 because he failed to prove loss causation, and that the Commodity Exchange Act claim also failed for the same reason.
• Mack v. Manual G. Garcia, M.D.
  433 So. 2d 17· Fla. 4th DCA· 1983-06-08 ·cited 14×
  This medical malpractice case addresses whether a physician defendant who negligently treated a fracture can assert a failure-to-mitigate defense against a patient who did not seek a second opinion. The Fourth District Court of Appeal reversed the judgment, holding that patients
• Rubinstein v. Yoram Yehuba
  38 F.4th 982· 11th Cir.· 2022-06-29 ·cited 13×
  Arturo Rubinstein sued Yoram and Sharona Yehuda after they sold a beachfront hotel in which Rubinstein held a majority ownership stake through his company, claiming the Yehudas fraudulently convinced him to temporarily assign his interest to help refinance the property but then p
• Fed. Deposit Ins. Corp. v. Mmahat
  907 F.2d 546· 5th Cir.· 1990-08-03 ·cited 12×
  The court held that the law firm's dishonesty exclusion from malpractice insurance coverage was valid, but remanded for credit for amounts paid by settling defendants.
• Invs. Preferred Life Ins. Co. v. Abraham
  375 F.2d 291· 10th Cir.· 1967-03-30 ·cited 10×
  A surviving corporation is liable for the fraudulent misrepresentations of an individual acting as its agent, even if the stock sold was the agent's personal stock, especially when the agent's actions were facilitated by the corporation and the fraud shocked the conscience of the
• Coletta Sayre v. The Musicland Grp., Inc.
  850 F.2d 350· 8th Cir.· 1988-06-21 ·cited 8×
  The court held that failure to plead failure to mitigate damages as an affirmative defense under Fed.R.Civ.P. 8(c) results in a waiver of that defense. The court also held that life insurance proceeds unrelated to the employment termination are not deductible from the award.
• Iannuzzelli v. Lovett
  981 So. 2d 557· Fla. 3d DCA· 2008-05-07 ·cited 7×
  Maria Iannuzzelli appealed the denial of attorney's fees and costs in her dissolution of marriage from Daniel Lovett, who had signed a federal Form 1-864 Affidavit of Support to sponsor her immigration. The court affirmed the denial, holding that attorney's fees under federal imm
• Purcell v. Williams
  511 So. 2d 1080· Fla. 1st DCA· 1987-08-26 ·cited 7×
  The Purcells sold real property to Williams under an installment land sale contract. After Williams failed to obtain required insurance and the house burned down, destroying the dwelling and causing Williams' death, the trial court cancelled the contract but denied the Purcells a
• Kennon v. Slipstreamer, Inc.
  794 F.2d 1067· 5th Cir.· 1986-07-23 ·cited 7×
  The court held that the district court's mention of settlement amounts to the jury was improper under Federal Rule of Evidence 408, as it was offered to prove the amount of the claim.
• Baker v. Hickman
  969 So. 2d 441· Fla. 5th DCA· 2007-11-09 ·cited 6×
  Baker appealed summary judgments dismissing her nuisance and trespass claims against neighboring landowners for flooding damage, arguing the claims were barred by Florida's four-year statute of limitations. The Fifth District reversed, holding that genuine issues of material fact
• ASH Chem., Inc. v. Dep't OF Env't Reg.
  706 So. 2d 362· Fla. 5th DCA· 1998-01-30 ·cited 6×
  The court held that the trial court erred by considering fraud as a basis for its judgment when fraud was not pled as an affirmative defense, violating the appellant's due process rights.
• Stanley Gudyka Sales Co. v. Lacy Forest Prods. Co.
  915 F.2d 273· 7th Cir.· 1990-09-27 ·cited 6×
  The court affirmed the district court's judgment, holding that the termination of the sales agreement was without 'just cause' and upholding the awarded damages.
• Fed. Deposit Ins. v. Cherry
  742 F. Supp. 612· M.D. Fla.· 1990-04-18 ·cited 6×
  The court held that the FDIC, acting as an assignee, is subject to the same defenses, including comparative negligence and statute of limitations, as the assignor would be, and that FIRREA's statute of limitations does not apply retroactively to pending litigation.
• THE FLA. BAR STANDARD JURY INSTRUCTIONS CIVIL 85-1
  475 So. 2d 682· Fla.· 1985-09-05 ·cited 6×
  The Florida Supreme Court approved amendments to the Florida Standard Jury Instructions (Civil) implementing the holding in Insurance Company of North America v. Pasakarnis regarding seat belt non-use as a mitigation defense. The Court authorized publication of revised jury charg
• Glover Distrib. Co., Inc. v. F.T.D.K., Inc.
  816 So. 2d 1207· Fla. 5th DCA· 2002-05-24 ·cited 5×
  Glover Distributing Company appealed a judgment in favor of F.T.D.K. for breach of a commercial lease, contending the trial court erred in denying various defenses and excluding evidence. The appellate court affirmed the judgment and the award of prejudgment interest, finding no
• Tubari Ltd., Inc. v. Nat'l Labor Relations Bd.
  959 F.2d 451· 3d Cir.· 1992-03-19 ·cited 4×
  The majority erred in finding that employees did not properly mitigate damages by accepting paid picketing work as interim employment.
• Sabat Quinones Candelario v. Postmaster General OF the United States
  906 F.2d 798· 1st Cir.· 1990-06-26 ·cited 4×
  The court held that the doctrine of administrative res judicata was improperly applied to bar the Postmaster General from raising the issue of the plaintiff's failure to mitigate damages in a compliance proceeding.
• The Cont'l Grp., Inc. v. Lincoln Land Moving & Storage, Inc.
  710 F.2d 368· 7th Cir.· 1983-06-21 ·cited 4×
  The court held that the trial court's finding that the plaintiff was not contributorily negligent, did not assume the risk, and did not fail to mitigate damages was supported by substantial evidence and not clearly erroneous.
• Peoples Tr. Ins. Co. v. Parvin Nowroozpour and Parviz Nowroozpour
  331 So. 3d 193· Fla. 4th DCA· 2021-11-24 ·cited 3×
  When an insurer elects to repair property and admits a covered loss but disputes the scope of repairs, the appraisal provision applies and appraisal is appropriate to determine the amount of loss and scope of repairs, even if the insurer breached its mitigation duties. The insure
• Ali v. City of Clearwater
  915 F. Supp. 1231· M.D. Fla.· 1996-02-07 ·cited 3×
  The court denied the City's motions for summary judgment on Counts I, II, III, and V, finding genuine issues of material fact regarding handicap discrimination, failure to accommodate, and equal protection violations.
• Fed. Sav. & Loan Ins. Corp. v. Tex. Real Est. Counselors, Inc.
  955 F.2d 261· 5th Cir.· 1992-02-20 ·cited 2×
  The court held that the district court's finding of negligence in accepting a limited scope appraisal assignment was not supported by the record, requiring a remand for reapportionment of fault. The court affirmed the district court's decisions regarding damages and prejudgment i
• Potts v. Benjamin
  882 F.2d 1320· 8th Cir.· 1989-08-21 ·cited 2×
  The court held that the exclusion of evidence regarding the plaintiff's failure to wear a seatbelt and failure to use child restraint seats was not reversible error, as the defendants failed to make an adequate offer of proof regarding causation for comparative negligence or miti
• Robert O. Pohl, M.D. v. Witcher
  477 So. 2d 1015· Fla. 1st DCA· 1985-08-07 ·cited 2×
  Dr. Pohl appeals a jury verdict awarding damages in a medical malpractice case brought by his former patient, Allen Witcher, for misdiagnosis of an ankle fracture. The appellate court reversed and remanded for a new trial on damages, finding that while there was sufficient eviden
• Campagna Constr. Co. v. Riverview Condo. Corp.
  467 So. 2d 807· Fla. 3d DCA· 1985-04-23 ·cited 2×
  Campagna Construction and its owner appealed a default judgment and damages award entered against them in a construction defect case involving a condominium complex. The appellate court affirmed, finding no reversible error in the trial court's striking of pleadings, default entr
• Peel v. Fla. Dep't of Transp.
  500 F. Supp. 526· N.D. Fla.· 1980-10-08 ·cited 2×
  The court held that the plaintiff is entitled to back wages and benefits, including prejudgment interest, and that the defendants' arguments regarding failure to mitigate and waiver of rights are without merit.
• Hungerford Constr. Co. & Cont'l Cas. Co. v. Fla. Citrus Exposition, Inc.
  410 F.2d 1229· 5th Cir.· 1969-04-22 ·cited 2×
  The court held that a liquidated damages provision in a construction contract, when applied to speculative losses of secondary use of the building, constitutes an unenforceable penalty under Florida law.
• Strickland v. State Farm Mut. Auto. Ins. Co.
  323 So. 3d 783· Fla. 1st DCA· 2021-04-30 ·cited 1×
  The appellate court affirmed a jury's verdict in a car accident case, holding that the Stricklands' arguments regarding summary judgment and insufficient evidence were either moot or waived. The court found that issues decided by a jury at trial render prior summary judgment ruli
• Bayview Loan Servicing, LLC v. Newell
  231 So. 3d 588· Fla. 1st DCA· 2017-12-06 ·cited 1×
  The appellate court reversed a trial court's decision that denied a foreclosure claim and sua sponte entered a money judgment. The court found that the lender proved its foreclosure claim and the borrower failed to prove any affirmative defenses, thus remanding for a judgment of
• Miller v. United States Postal Serv.
  985 F.2d 9· 1st Cir.· 1993-02-04 ·cited 1×
  The court held that the Union did not breach its duty of fair representation, and therefore, the hybrid claim against the Postal Service also fails.
• Resolution Tr. Corp. v. Jet Stream, Ltd.
  790 F. Supp. 1130· M.D. Fla.· 1992-04-08 ·cited 1×
  The court held that the defendants' counterclaims and affirmative defenses based on an alleged oral joint venture agreement were barred by the D'Oench doctrine and the federal holder in due course doctrine, as these agreements were not reflected in the bank's official records.
• England v. United States
  632 F. Supp. 1340· M.D. Fla.· 1986-04-14 ·cited 1×
  The court held that the seat belt defense, as a failure to mitigate damages, is not applicable in a Florida wrongful death action because it would allow a tortfeasor to evade liability, and even if applicable, the defendant failed to prove the decedent acted unreasonably by not w
• Orlando Health, Inc. v. HKS Architects, Inc.
  M.D. Fla.· 2025-12-17
  The court held that a defendant asserting affirmative defenses in a breach of contract action must present evidence to support them, and legally insufficient defenses are invalid.
• PeopleGuru, Inc. v. Med. Man Techs., Inc.
  M.D. Fla.· 2025-09-30
  The court held that the defendant materially breached the contract by failing to provide timely notice of non-renewal, and the contract's language regarding notice was clear and unambiguous.
• Wilkerson v. A.S.A.P. Servs.
  Del. Super. Ct.· 2025-09-02
  The appellate court affirmed the trial court's decision, holding that A.S.A.P. Services, Corp. and William Gross were liable for breach of contract and negligence per se. The court found that the Wilkersons were third-party beneficiaries to the contract for the septic inspection,
• Ameristar Air Cargo, Inc. v. Triad Aero Sales
  S.D. Fla.· 2025-08-14
  The court denied the defendant's renewed motion for judgment as a matter of law and motion for a new trial, finding the jury's verdict was supported by sufficient evidence and within the permissible range of damages.
• U.S. Equal Emp. Opportunity Comm'n v. The Princess Martha, LLC
  M.D. Fla.· 2025-04-30
  The court granted-in-part and denied-in-part defendants' motion for judgment as a matter of law, and denied plaintiff's motion, finding that some issues were for the jury and modifying jury instructions on one point.
• Edelman v. MSC Cruises S.A.
  S.D. Fla.· 2025-04-28
  The court granted in part and denied in part Plaintiff's motion to strike Defendant's affirmative defenses, striking some as impermissible under maritime law and treating others as mere denials.
• Zeflon LLC v. World Reach Health, LLC
  S.D. Fla.· 2025-04-01
  Zeflon LLC, a reseller of COVID-19 antigen tests, sought payment of approximately $260,655 from World Reach Health, LLC, for tests allegedly delivered under multiple invoices, while World Reach disputed the quantities ordered, claimed undelivered shipments, and sought credits for
• Rabuck v. Pollack & Rosen, PA
  M.D. Fla.· 2025-03-19
  The Court granted in part and denied in part Plaintiff's motion to strike Defendant's affirmative defenses, striking only the 'Set Off Defense' as agreed.