ARBITRATION / TORTS
BKD
Twenty-One Mgmt. Co. v. Delsordo, 2012 Fla. App. LEXIS 18985 (Fla. 4th DCA Oct.
31, 2012) reversed an order denying a motion to compel arbitration in a
trip and fall action against the defendants-lessors. The arbitration clause provided that “any
claim or dispute (including those based on contract, negligence or statute)
amongst the Parties… arising out of or related to this Agreement, the
Establishment or the services/care provided to the Resident, shall be resolved
by binding arbitration….” The arbitration provision does not define the term “Establishment.” The lease covered an independent retirement
living facility. The court states that
cases decided after Seifert
v. United States Home Corp., 750 So. 2d 633 (Fla. 1999) [See Ramirez, 2-28
Florida Civil Procedure § 28-5 fn. 74-75] have made clear that an arbitration
agreement may be drafted to expressly mandate arbitration of tort claims. It concluded that the term “Establishment” in
the context of the lease agreement meant “place of business.” Thus, plaintiff’s negligence claim was
subject to arbitration.
ATTORNEY’S FEES /
MECHANIC’S LIENS
GMPF Framing, LLC v. Villages at Lake
Lily Assoc., LLC, --- So. 3d --- (Fla. 5th DCA November 2, 2012)
reversed an award of attorney’s fees pursuant to F.S. § 713.29, the claim of
lien statute. Even though the trial
court discharged the claim of lien, there remained pending additional claims
for the imposition of an equitable lien and unjust enrichment. Under F.S. § 713.29,
the prevailing party is not necessarily the party who recovers a net judgment,
but instead to that party that has prevailed on “significant issues” in the
case. See Prosperi
v. Code, 626 So. 2d 1360 (Fla. 1993) [See also Ramirez, 2-24
Florida Civil Procedure § 24-5]. Here,
because significant counts remained, it was impossible to determine the
substantially prevailing party until the pending counts were resolved.
ATTORNEY’S FEES /
PROPOSALS FOR SETTLEMENT
Braaksma v. Pratt, --- So. 3d
--- (Fla. 2d DCA November 2, 2012) held that once a party complies with the
technical requirements of F.S. § 768.79 and rule 1.442, the trial court may
only disallow fees upon a finding that the offer was not made in good
faith. Here the judge denied fees
because rejection of the offer did not result in any additional delay costs and
expenses, a factor not authorized.
VENUE / PERMISSIVE
FORUM SELECTION CLAUSE
Am.
K-9 Detection Servs. v. Cicero, 2012 Fla. App. LEXIS 19085 (Fla. 5th DCA Nov.
2, 2012) affirmed the trial court for finding that a clause
providing that “[t]he Parties hereby expressly consent to: (a) the personal
jurisdiction of the federal and state courts within Central Florida,” was a
permissive forum selection clause allowing plaintiff to file suit in Orange
County. Although the terms “venue” and “jurisdiction”
are not synonymous, “there have been many instances in which Florida courts
have interpreted provisions that omit the words ‘forum’ or ‘venue’ and refer
only to ‘jurisdiction’ in a particular location to be forum selection clauses.”
Any ambiguity had to be construed against the drafter (defendant). [See
Ramirez,
VENUE / FRAUDULENT TRANSFER CLAIM
Bedwell
v. Rucks, 2012 Fla. App. LEXIS 18963 (Fla. 4th DCA Oct. 31, 2012) reversed
an order denying defendants’ motion to transfer venue in an action for
violation of the Uniform Fraudulent Transfer Act, F.S. § 726.106. The suit was filed in Okeechobee County. It was undisputed that defendants
resided in Miami-Dade or Broward County, and no property was at issue. Therefore, the issue was where the action
accrued. A cause of action accrues when
the last element necessary to complete it occurs. See F.S. § 47.011 [See also
Ramirez, 1-4
Florida Civil Procedure § 4-9, fn. 194].
The court reasoned that proof of damages in the underlying claim is not
an element of a Fraudulent Transfer Act claim. The Fraudulent Transfer Act only
requires that a creditor’s claim arise before the alleged transfer. Accordingly, the place where damages occurred
in the underlying claim is irrelevant to determining when and where a
fraudulent transfer claim accrued. The
court relied on the applicable statute of limitations, which states “within 4
years after the transfer was made…”
F.S. § 726.110(2). A Fraudulent Transfer Act claim accrues at the moment
the alleged transfer occurs. Here,
defendants presented evidence that the alleged fraudulent transfers took place
in either Miami-Dade or Broward County. This was sufficient to shift the burden
back to plaintiffs to demonstrate that venue was proper in Okeechobee County. To rebut defendants’ evidence, plaintiffs relied
only on facts relevant to a separately filed professional malpractice claim. This
was insufficient to meet their burden.
FORECLOSURES
Vidal
v. Liquidation Props., 2012 Fla. App. LEXIS 18960 (Fla. 4th DCA Oct. 31, 2012)
reversed summary judgment where, to demonstrate standing, the plaintiff produced
the original note and mortgage, an undated allonge endorsed in blank, and a
mortgage assignment executed on February 6, 2009, with an effective date of
January 15, 2009, where suit was filed on February 5 2009. The court reasoned that the back-dated
assignment did not demonstrate, as a matter of law, that a legal or equitable
transfer of the note and mortgage had occurred prior to the filing of the
complaint.
HOMEOWNER’S INSURANCE
Clarke
v. State Farm Fla. Ins., 2012 Fla. App. LEXIS 18961 (Fla. 4th DCA Oct. 31,
2012) affirmed a declaratory judgment for the insurer because the plaintiff’s
claims fell outside the plain language that defined the scope of the policy’s
coverage. State Farm agreed to defend and indemnify Clarke for claims brought against
Clarke “for damages because of bodily injury.” The policy excluded from the
definition of “bodily injury” communicable diseases “transmitted by any insured
to any other person.” The plaintiff based all four of her causes of action on
the fact that she “was exposed to a high risk HSV virus and contracted the
herpes virus from the Defendant” as a result of his actions. The court stated that the complaint alleged
injuries expressly excluded by the policy.
INSURANCE / SUMMARY JUDGMENT
Voort
v. Universal Prop. & Cas. Ins. Co., 2012 Fla. App. LEXIS 18964 (Fla. 4th DCA
Oct. 31, 2012) reversed summary judgment explaining that, while it is the
insured’s burden to prove the essential elements of its cause of action at
trial, on a motion for summary judgment, it was the insurer’s burden to prove
the nonexistence of a material fact. Thus, at this stage, the insureds did not have
to prove that the loss occurred during the policy period; the insurer had to
prove that it did not.
DUTY
Weber v. Marino Parking Sys., Inc.,
--- So. 3d --- (Fla. 2d DCA November 2, 2012) held that, as a matter of law, a
valet parking service owed no duty to third parties to refrain from returning
car keys to an obviously intoxicated customer, and that customer collided with
and killed Weber.
TOBACCO / STATUTE OF LIMITATIONS / JURY
INSTRUCTIONS
R.
J. Reynolds Tobacco Co. v. Jewett, 2012 Fla. App. LEXIS 18994 (Fla. 1st DCA Nov.
2, 2012) reversed for a new trial for failure to give a jury instruction
requested by the defendant, stating that a trial court abuses its discretion
when it fails to give a proposed instruction that is (1) an accurate statement
of the law, (2) supported by the facts of the case, and (3) necessary for the
jury to properly resolve the issues, so long as the subject of the proposed
instruction is not covered in other instructions given to the jury and the
failure to instruct is shown to be prejudicial.
Defendants requested that the jury be told that they did not need to
prove that plaintiff “was actually diagnosed with COPD prior to May 5, 1990, in
order to prevail on this defense. For purposes of this defense, the critical
event is not when her COPD was actually diagnosed by a physician, but when her
COPD first manifested itself.”
Defendant also requested that following: That plaintiff “knew or should have known
that there was a reasonable possibility that her COPD was caused by cigarette
smoking if her COPD manifested itself to her in a way that supplied some
evidence of a causal relationship to cigarette smoking. In making that
determination, you may properly consider what [plaintiff] knew prior to May 5,
1990, concerning the health risks of cigarettes.”
No comments:
Post a Comment