Estate of Myhra v. Royal Caribbean Cruises, 2012 U.S. App. LEXIS 19927 (11th Cir. Fla. Sept. 21, 2012) affirmed the dismissal of an action for improper venue based on a forum-selection clause contained in the passage contract, requiring the courts of England and Wales as the forum. The decedent had been a citizen of England who traveled aboard the Liberty of the Seas, which departed from Miami, contracted Legionnaire’s Disease and died. The court explained that under Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990), when the parties submit conflicting affidavits, the court, in the absence of an evidentiary hearing, “is inclined to give greater weight to the plaintiff’s version of the jurisdictional facts and to construe such facts in the light most favorable to the plaintiff.”
The court rejected the argument that the forum-selection clause was against the public policy of the United States; in particular, that 46 U.S.C. § 30509, which prevents a ship owner from placing in the contract for passage a limitation on liability. But the forum-selection clause did not place such a limitation; it was the fact that the United Kingdom has ratified the Athens Convention that effected the limitation. The court also concluded that the terms were sufficiently communicated to the Myhras to preclude any claim that they were achieved by overreaching.
NO CLAIM NO GAIN
In Brady v. P3 Group (LLC), 2012 Fla. App. LEXIS 15536 (Fla. 3d DCA Sept. 19, 2012), the defendants brought Brady into the case as a third party defendant. The plaintiff sought and obtained a default final judgment against Brady even though he had never sued Brady, or filed any claim against Brady. The court stated that “the Rules contemplate that each claim in a multiclaim lawsuit is and should be considered a separately commenced action, albeit prosecuted for convenience in a single action. This conclusion is inferable from the language of Florida Rule of Civil Procedure 1.100…” The court thus reversed the denial of the motion to vacate the judgment. For further information, see Ramirez, Florida Civil Procedure § 8-1.
Baldwin v. Regions Fin. Corp., 2012 Fla. App. LEXIS 15557 (Fla. 3d DCA Sept. 19, 2012) affirmed an order compelling arbitration in a clause which also waived his class action rights. Plaintiff did not argue that the class action waiver was unconscionable, citing AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746, 179 L. Ed. 2d 742 (2011) (upholding a class action waiver in an arbitration agreement), but instead contended that enforcement of the arbitration clause would prevent him and other potential class members from seeking an express statutory remedy provided by section 559.77(2) of the Florida Consumer Collection Practices Act. The court reviewed the statute and concluded that the same statutory damages were available whether the action was filed as an individual action or a class action.
MOTION IN LIMINE / VIOLATION / SANCTIONS
Adams v. Barkman, 2012 Fla. App. LEXIS 15875 (Fla. 5th DCA Sept. 21, 2012) affirmed the trial court for granting a motion for mistrial after defense counsel repeated violated hotly-litigated motions in limine. Later, the court held an evidentiary hearing on sanctions and made lengthy oral findings based on Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) and Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) See Ramirez, 2-19 Florida Civil Procedure § 19-3
The court mentioned trial counsel by name, a Mr. Fischer, and noted that his conduct was a continuing problem and bemoaned how attorneys repeatedly violated court orders. While “cases should be tried on the merits and not attorney shenanigans, the threat of an admonishment and a new trial appears to be of no avail. By sanctioning a party as… in this case, maybe attorneys will get the message to either change their tactics or clients will stop hiring them.”
Raza v. Deutsche Bank Nat'l Trust Co., 2012 Fla. App. LEXIS 15893 (Fla. 2d DCA Sept. 21, 2012) affirmed the denial of fees where the bank’s foreclosure was involuntarily dismissed after two years. A divided court concluded that, even though the appellant was the prevailing party and entitled to fees, [see Ramirez, 2-24 Florida Civil Procedure § 24-5, fn. 202.1] he was still required to present evidence of the number of hours worked, instead of claiming a flat fee. He had to prove the flat fee was reasonable. The absence of time records was not fatal to his effort, but here the expert’s affidavit did not consider all of the factors under Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Additionally, there was no transcript of the fee hearing. The dissent would have remanded for a new fee hearing.
BAD FAITH CLAIMS
Chalfonte Condo. Apt. Ass'n v. QBE Ins. Corp., 2012 U.S. App. LEXIS 19814 (11th Cir. Fla. Sept. 20, 2012) reversed an $8 million verdict after the Florida Supreme Court answered a series of questions. [See QBE Ins. Corp. v. Chalfonte Condo. Apt. Ass'n, 2012 Fla. LEXIS 1063 (Fla. May 31, 2012) discussed in the entry posted on June 25, 2012, under “Insurance – Bad Faith Claims.”]. The court affirm the district court’s judgment of dismissal of Chalfonte’s claim under F.S. § 627.701(4)(a), because an insured cannot bring a claim against an insurer for failure to comply with the language and type-size requirements established under that statutory provision. On remand, the district court was to disallow any evidence of the policy’s failure to comply with these requirements. It also reversed the order denying QBE a new trial. The court was to bifurcate the contract claim from the bad faith claim and to apply the deductible to any judgment Chalfonte may obtain on retrial.
In Berrios v. Orlando Reg'l Healthcare Sys., 2012 Fla. App. LEXIS 15883 (Fla. 5th DCA Sept. 21, 2012), a split court reversed the entry of a summary judgment based on a release of an initial tortfeasor in this suit for a subsequent malpractice. Plaintiff had contracted Legionnaires’ disease while at a hotel in Georgia, then was treated for two weeks at a hospital which allegedly caused nerve damage to her leg. Because the release was executed in Georgia, the court applied Georgia law under the lex loci contractus rule where there is a legal presumption that the release of an initial tortfeasor does not release a subsequent tortfeasor unless the express language of the release dictates otherwise.http://www.5dca.org/Opinions/Opin2012/091712/5D11-3727.op.pdf