Florida/Georgia Personal Injury & Workers Compensation

...[9] However, the Louisiana legislature subsequently overruled the court's decisions by codifying the requirement of actual or constructive knowledge into statute. See 1990 La. Acts 1025, La.Rev.Stat. Ann. § 9:2800.6 (West 1990). [10] The presumption is one affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000). As we explained in Beal Bank, SSB v. Almand & Associates, 780 So.2d 45, 59 n. 20 (Fla.2001): Section 90.304 provides that "in civil actions, all rebuttable presumptions which are not defined in s....

...s long as the account is established by husband and wife in accordance with the unities of possession, interest, title, and time and with right of survivorship. [18] The presumption we adopt is a presumption affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting the burden to the creditor to prove by a preponderance of evidence [19] that a tenancy by the entireties *59 was not created....

...assaat, Ltd. v. Bettis, 654 So.2d 980, 981 (Fla. 4th DCA 1995). We find no reason to deviate from that standard here. We disapprove Terrace Bank v. Brady, 598 So.2d 225, 228 (Fla. 2d DCA 1992), to the extent it imposes a higher burden of proof. [20] Section 90.304 provides that "in civil actions, all rebuttable presumptions which are not defined in s....

...of producing evidence. This type of presumption is commonly referred to as a vanishing presumption, or a "bursting bubble" presumption. Once evidence rebutting the presumption is introduced, the presumption disappears and the jury is not told of it. Section 90.304, Florida Statutes (1987), defines the second type of rebuttable presumption: In civil actions, all rebuttable presumptions which are not defined in s....

...The issue we confront is the effect of an ex parte communication upon a decision emanating from a quasi-judicial proceeding of the Dade County Commission. We hold that upon proof that a quasi-judicial officer received an ex parte contact, a presumption arises, pursuant to section 90.304, Florida Statutes (1989), that the contact was prejudicial....

...judicial proceeding states a cause of action. E.g., Waste Management; PATCO. Upon the aggrieved party's proof that an ex parte contact occurred, its effect is presumed to be prejudicial unless the defendant proves the contrary by competent evidence. § 90.304....

...and is sufficient evidence to convince the fact-finder that the innocent party has been prejudiced; the rebuttable presumption imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact. [6] § 90.304, Fla....

...Conversely, the appraiser's failure to at least consider the necessary predicates renders his valuation invalid. Straughn v. Tuck, supra ; Palm Corporation v. Homer, supra. Even in the absence of the common law, the Florida Evidence Code, Sections 90.302(2) and 90.304, Florida Statutes (1977), mandates the result stated above. The Law Revision Council Note to Section 90.304, Florida Statutes Annotated (1976) includes examples involving acts of public officials. Consequently, even without the historical development of the law in Florida, Sections 90.302(2) and 90.304, supra, would control....

...When the Board's jurisdiction to review the preliminary assessment is invoked and the Board properly acts, we do not perceive that the Legislature intended that it become a useless act. We observe, as we did with respect to the appraiser, that even in the absence of decisional law, Sections 90.302(2) and 90.304, supra, would accord the official acts of the Board presumptive validity....

...Where the appraiser has considered the relevant criteria, the taxpayer must overcome the presumptive validity of the appraiser's preliminary assessment to the exclusion of every reasonable hypothesis of a legal assessment. Straughn v. Tuck, supra ; §§ 90.302(2) and 90.304, Fla....

at 137 n. 2.1 Universal also moved to apply section 90.304, Florida Statutes (2007), and requested that

...set out in Wilcox is sound and that it is applicable to the facts of this case. [4] Presumptions affecting the burden of producing evidence [5] are established primarily to facilitate the determination of the action. Law Revision Council Note-1976, § 90.304, Fla....

...The problem is that inferences are an aspect of evidence and, unlike presumptions, do not themselves serve a burden-shifting function. There is no provision in the Florida Evidence Code for the use of presumptions in criminal cases. [5] Each of the two statutory definitions of presumptions (§§ 90.303 and 90.304, Fla....

...vice (a procedural rule) established primarily to facilitate the determination of a particular action ( see § 90.303, Fla. Stat.) while the Morgan-McCormick-§ 90.302(2) presumption is a rule of substantive law used to implement public policy ( see § 90.304, Fla....

..., Fla. Stat. (2002). "A presumption... requires that `once some fact ... is established, some other fact at issue ... must be deemed true, at least provisionally.'" State v. Rolle, 560 So.2d 1154, 1159 (Fla.1990) (Barkett, J., concurring specially). Section 90.304 provides that rebuttable presumptions not included within the definition of section 90.303, i.e., presumptions that implement public policy rather than being established primarily as procedural devises, are presumptions affecting the burden of proof or the burden of persuasion. § 90.304, Fla....

...f the will is opposed or revocation is sought. (2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under sections 90.301-90.304. (emphasis added). The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.301-90.304 of the Florida Evidence Code, and require a shifting of the burden of proof after the presumption of undue influence arises in a will contest....

...uence in cases. See Steven G. Nilsson, Florida's New Statutory Presumption of Undue Influence, 77 Fla. B.J. 20, 21 (2003). Because section 733.107(2) specifically mandates that the presumption shifts the burden of proof under sections 90.301 through 90.304 when a presumption of undue influence arises, as it did here, Janes, the alleged wrongdoer, bore the burden of proving that there was no undue influence....

...In any event, the same law is applicable to both motions. Foster v. City of Gainesville, 579 So.2d 774 (Fla. 1st DCA 1991). [2] A summary of the evidence put forth by Appellants can be found in Hack I. On retrial, Janes offered conflicting evidence. [3] Sections 90.301 through 90.304 provide: 90.301....

...r otherwise established. (2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable. (3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate. (4) Sections 90.301-90.304 are applicable only in civil actions or proceedings....

...ovided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence. 90.304....

...NOTES [1] Although the deceased coincidentally had the same last name, this case is unrelated to In re Estate of Gainer, 579 So.2d 739 (Fla. 1st DCA 1991). [2] Contrary to respondents' argument, however, we also agree that in exchange for the creation of a presumption which shifts the burden of proof to the estate under section 90.304, Florida Statutes (1987), and increases the burden to a clear and convincing standard, the estate is entitled to introduce parol evidence....

one affecting the burden of proof pursuant to section 90.304, F.S. (2000), shifting to the creditor the

...ovided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence. Section 90.304, Florida Statutes (1979), provides: In civil actions, all rebuttable presumptions which are not defined in s....

...Tuck, 354 So.2d 368 (Fla.1977); Bystrom v. Equitable Life Assurance Soc'y of the United States, 416 So.2d 1133 (Fla. 3d DCA 1982). As explained by Professor Ehrhardt, presumptions that implement public policy are rebuttable presumptions codified under section 90.304, Florida Statutes, which affect the burden of proof, and, "[b]ecause of the harm that would result to society and the individual if the presumed fact is disproved, a greater burden is placed upon a party to disprove the presumed fact." Charles W....

...e weighed along with other evidence of the paternity of the alleged father unless the statistical probability of paternity equals or exceeds 95 percent." A statistical probability of 95 percent or more creates a rebuttable presumption, as defined by § 90.304, that the alleged father is the biological father of the child....

...At that point, the burden shifts to the defendant to show by the greater weight of the evidence that it exercised reasonable care in the maintenance of the premises. Owens, 802 So.2d at 331. The supreme court held that "[t]he presumption is one affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000).......

...Universal contended that the 2005 amendments and enactments did not impair existing contract rights or obligations. Alternatively, Universal argued that any impairment was overridden by the State's interest in resolving a sinkhole insurance claim crisis. Universal also asked the trial court to determine that section 90.304, Florida Statutes (2007), allowed a jury instruction based on section 627.7073(1)(c) as a rebuttable presumption affecting the burden of proof....

...[3] Universal retained its experts under section 627.707(2) to conduct the testing required by section 627.7072 and to issue a *138 report in accordance with section 627.7073. This report bears the presumption of correctness. Universal also contended that section 627.7073(1)(c) created a section 90.304 presumption because it implemented public policy relating to a sinkhole insurance crisis....

...See Wallach v. Rosenberg, 527 So.2d 1386, 1388-89 (Fla. 3d DCA 1988). We must assume that the legislature *139 was aware of this fact when it enacted section 627.7073(1)(c). Moreover, the legislature knows how to create burden-shifting presumptions under section 90.304....

...n v. Williams, 566 So.2d 9, 11 (Fla. 3d DCA 1990) (explaining that the statutory presumption of paternity under section 742.12(1), Florida Statutes (1989), is a rebuttable presumption and the legislature specifically provided that it was governed by section 90.304 of the evidence code)....

...In contrast, the legislature has not declared that the presumption in section 627.7073(1)(c) is a public policy-related presumption. Nor did the legislature specifically provide that section 627.7073(1)(c) was to operate as a burden-shifting presumption under sections 90.302(2) or 90.304....

...However, because our ruling may affect insurance claims for sinkhole losses throughout Florida, we certify the following question to the supreme court as one of great public importance: DOES THE LANGUAGE OF SECTION 627.7073(1)(C) CREATE A PRESUMPTION AFFECTING THE BURDEN OF PROOF UNDER SECTION 90.304 OR DOES THE LANGUAGE CREATE A PRESUMPTION AFFECTING THE BURDEN OF PRODUCING EVIDENCE UNDER SECTION 90.303....

...a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence. (Emphasis added.) Section 90.304 then provides: Presumption affecting the burden of proof defined.—In civil actions, all rebuttable presumptions which are not defined in s. 90.303 are presumptions affecting the burden of proof. (Emphasis added.) Section 90.304 applies to presumptions implementing public policy and, therefore, applies in this case....

...(holding that presumption could be overcome only by clear and convincing evidence and that, in the absence of such cogent proof, public policy must be given effect). The majority points out that the legislature knows how to expressly create burden-shifting presumptions under section 90.304....

...lve an issue of retroactivity. Although Mr. Warfel takes issue with the latter ruling, we find no error and discuss the matter no further. [3] The legislature made minor changes to section 627.7073(1)(c) in 2006, none of which are relevant here. [4] 90.304 Presumption affecting the burden of proof defined.—In civil actions, all rebuttable presumptions which are not defined in s....

...statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence." [6] See § 90.304, Fla....

shifts the burden of proof to the estate under section 90.304, Florida Statutes (1987), and increases the

...Normally, if the rights of parties are resolved by a clear and unambiguous contract, parol evidence is not admitted to alter the expressed intent. Knabb v. Reconstruction Fin. Corp., 144 Fla. 110, 197 So. 707 (1940). The banking statute, however, creates a presumption which shifts the burden of proof to the estate under section 90.304, Florida Statutes (1987), and increases the burden to the clear and convincing standard....

...ies as long as the account is established by husband and wife in accordance with the unities of possession, interest, title, and time and with right of survivorship. The presumption we adopt is a presumption affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting the burden to the creditor to prove by a preponderance of evidence that a tenancy by the entireties was not created....

...Test results are admissible in evidence and should be weighed along with other evidence of the paternity of the alleged father unless the statistical *927 probability of paternity equals or exceeds 95 percent. A statistical probability of paternity of 95 percent or more creates a rebuttable presumption, as defined by s. 90.304, that the alleged father is the biological father of the child....

...ent probability of paternity are introduced, the trial court shall weigh the test results with all other evidence. However, when HLA test results indicate a probability of paternity equal to or greater than 95 percent, a rebuttable presumption under Section 90.304, Florida Statutes (1987), arises. In Caldwell v. Division of Retirement, Florida Department of Administration, 372 So.2d 438 (Fla. 1979), the Supreme Court held that Section 90.304, Florida Statutes, presumptions impose on the party against whom the presumption operates, the burden of proof concerning the nonexistence of the presumed fact....

presumption defined by section 90.304, a 'presumption affectirig .the burden of proof. See § 90.304, Fla. Stat.

later codified in the Florida Evidence Code, as section 90,304, Florida Statutes. . If a claimant has evidence

a presumption “affecting the burden of proof.” § 90.304, Fla. Stat. (2023). As discussed in Love, amendments

affecting the burden of proof pursuant to- section 90.304, Florida Statutes (2000), thus shifting the

affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting

45-day presumption is of the kind covered by section 90.304, Fla.Stat. (1989). Such presumptions in Florida

shifts the burden of proof to the estate under section 90.304, Florida Statutes (1987), and increases the

stated above. The Law Revision Council Note to Section 90.-304, Florida Statutes Annotated (1976) includes

affecting the burden of producing evidence. Section 90.304 provides: Presumption affecting the burden

presumption affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting the

shifts the burden of proof to the estate under section 90.304, Florida Statutes (1987), and increases the

affecting the burden of producing evidence defined. § 90.304, Fla. Stat. Presumption affecting the burden of

presumptions affecting the production'of evidence. Section 90.304, Florida Statutes, provides “[i]n civil actions

contact, a presumption arises, pursuant to section 90.304, Florida Statutes (1989), that the contact

affecting the burden of proof pursuant to section 90.304, Florida Statutes (2000), thus shifting