FORUM-SELECTION CLAUSE
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.
ARBITRATION / CLASS ACTIONS
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.”
ATTORNEY’S FEES
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.
RELEASES
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
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