CLASS ACTION ARBITRATION
In Oxford Health Plans LLC V. Sutter, Case No. 12-135, the U.S. Supreme Court granted certiorari review in another class action arbitration. In Stolt-Nielsen v. AnimalFeeds International Corp., 130 S. Ct. 1758, 1776 (2010), the Court made clear that “class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to arbitration.” In this case, an arbitrator concluded that the parties affirmatively consented to class arbitration on the basis of a contract provision stating: “No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration.”
The question presented is:
Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the Second and Third Circuits have held) or exceeds those powers (as the Fifth Circuit has held) by determining that parties affirmatively "agreed to authorize class arbitration," Stolt-Nielsen, 130 S. Ct. at 1776, based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.
The circuit court opinion seems to interpret Stolt-Nielsen narrowly. See Sutter v. Oxford Health Plans LLC, 675 F.3d 215, 224 (3d Cir. N.J. 2012). More likely to prevail is the reasoning in Reed v. Fla. Metro. Univ., 681 F.3d 630, 642 (5th Cir. Tex. 2012), where even more expansive contractual provisions were held not to encompass class action arbitrations.
907 Whitehead St. v. Sec'y of the USDA, 2012 U.S. App. LEXIS 25106 (11th Cir. December 7, 2012) held that the Hemingway Museum was subject to the jurisdiction of the U.S. Department of Agriculture and its animal inspection service could regulate the museum as an animal exhibitor for the progeny of a polydactyl cat named Snowball.http://www.ca11.uscourts.gov/opinions/ops/201114217.pdf
FORUM SELECTION CLAUSE
Bahamas Sales Assoc., LLC v. Byers, 2012 U.S. App. LEXIS 24887 (11th Cir. Fla. Dec. 4, 2012) involved real property located in the Bahamas. The mortgage contained a forum selection clause in which the obligor agreed to the jurisdiction of the courts in Florida. Thus, the clause was only binding on Byers as the obligor under the mortgage and not on the mortgagee, Bahamas Sales. The court next held that the counterclaim alleging appraisal fraud did not relate to the lot purchase contract. Nor did equitable estoppel apply. It therefore reversed the order dismissing Byers’ counterclaim based on the forum selection clause in the lot purchase contract.http://www.ca11.uscourts.gov/opinions/ops/201111664.pdf
BAD FAITH FAILURE TO SETTLE
Goheagan v. Am. Vehicle Ins. Co., 2012 Fla. App. LEXIS 20897 (Fla. 4th DCA Dec. 5, 2012) reversed a summary judgment in favor of the insurer in this bad faith claim. The court had previously affirmed, 2 to 1, and now reversed, 2 to 1. Evidently Judge Polen changed his mind on rehearing.
This was a catastrophic accident with only a $10,000 policy limit. The insurer promptly tried to settle the claim. The victim was in a coma, so the adjuster contacted the family and was told that they had retained an attorney, but despite repeated attempts, she was not given the attorney’s name. When she learned that suit had been filed against its insured, she attempted to tender the policy limits. A majority thought there was an issue as to whether the insurer had acted in good faith.
It appears the adjuster had done everything, except tender an offer. “If in fact [the victim’s family] had retained an attorney, the assistance of the attorney may have been necessary to finalize a settlement but would not have precluded an offer. With the catastrophic injuries, clear liability, and the limited available liability limits of $10,000, a jury could decide that there was not much to negotiate; and the representation by an attorney would not have been an impediment to at least make an offer to settle.”http://www.4dca.org/opinions/Dec%202012/12-05-12/4D10-3781.reh-dis.pdf
FORECLOSURES / SUMMARY JUDGMENT
Dominko v. Wells Fargo Bank, N.A., 2012 Fla. App. LEXIS 20895 (Fla. 4th DCA Dec. 5, 2012) reversed a summary judgment granted after the defendant filed a motion arguing that the bank had not complied with the pre-suit notice requirement in the acceleration clause of the mortgage. “When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” The court further stated: “Although Wells Fargo made the general allegation in its complaint that all conditions precedent to the foreclosure action had occurred, there was no evidence in the record that Wells Fargo complied with [the requirement]. Wells Fargo’s affidavit in support of summary judgment did not mention the conditions precedent.”http://www.4dca.org/opinions/Dec%202012/12-05-12/4D11-1854.op.pdf
Exotic Motorcars & Jewelry, Inc. v. Essex Ins. Co., 2012 Fla. App. LEXIS 20896 (Fla. 4th DCA Dec. 5, 2012) reversed a judgment that contained no findings of fact, conclusions of law, or other indication of the basis for the trial court’s ruling. The court explained that orders that contain no meaningful findings, “effective review may be deemed impossible and the cause remanded for findings, notwithstanding that such findings may not be mandated by rule or statute…. This may particularly be the case where the action is one for declaratory relief.”http://www.4dca.org/opinions/Dec%202012/12-05-12/4D11-2795.op.pdf
Kirrie v. Indian River County Code Enforcement Bd., 2012 Fla. App. LEXIS 20905 (Fla. 4th DCA Dec. 5, 2012) quashed, on second-tier review, the circuit court or denying procedural due process where it denied the Kirries’ motion to supplement the record because it thwarted review of their appeal on the merits.http://www.4dca.org/opinions/Dec%202012/12-05-12/4D12-2328.op.pdf
ORDER VACATING FINAL JUDGMENT
Cemex Constr. Materials v. Ross, 2012 Fla. App. LEXIS 21088 (Fla. 5th DCA Dec. 7, 2012) affirmed an order vacating a final judgment based on unsworn representations of counsel even though “the general rule in Florida is that absent a stipulation, unsworn representations by counsel about factual matters may not serve as the basis for a trial courts factual determination.” The rule, however, is subject to the requirement that the opposing party make a contemporaneous objection.” Here, there was no objection. Had there been an objection, the trial court could have simply placed counsel under oath.http://www.5dca.org/Opinions/Opin2012/120312/5D12-2449.op.pdf