Hasan v. Garvar, --- So. 3d --- (Fla. December 20, 2012) held that Fla. Stat. § 456.057 prohibits ex parte private pre-deposition between an attorney hired by an insurance company to represent a dentist who rendered treatment to plaintiff after the alleged malpractice was committed by another dentist, where the same insurance company insured both dentists. Polston and Canady dissented.
Spring Lake NC, LLC v. Figueroa, 2012 Fla. App. LEXIS 21521 (Fla. 2d DCA Dec. 14, 2012) is another example of the judicial hostility to arbitration that led to the enactment of the Federal Arbitration Act (FAA) in 1925. The plaintiff in a personal injury case was contesting a motion to compel arbitration arguing that the phrase “nationally recognized arbitration association” was ambiguous. Ultimately, the circuit court found the phrase was unambiguous. The court nevertheless denied the motion. The circuit court was found to have erred in multiple ways in denying the motion to compel arbitration.
First, the court should have concluded the hearing when it determined that the phrase “nationally recognized arbitration association” was not ambiguous, a conclusion with which it agreed. Second, even if the court could have found ambiguity in that phrase, the evidence submitted was insufficient to establish multiple, reasonable interpretations of the phrase. The third, which was the trial court’s reason for denying the motion to compel, was an impossibility argument—that that the only nationally recognized arbitration associations would not take this type of case. This was ostensibly based on counsel’s personal knowledge, which did not qualify as evidence. It also failed because the purpose for which the agreement was drafted—arbitration—was not rendered impossible given the FAA’s provision in 9 U.S.C.A. §5 that the court may appoint arbitrators.
ARBITRATOR OR JUDGE
Steuer v. Jaylene Inc., 2012 Fla. LEXIS 2590 (Fla. December 20, 2012) represents another case where the Florida Supreme Court is proceeding on a different track that the U.S. Supreme Court by quashing a decision stating that the arbitrator (as opposed to the trial court) initially must determine whether an arbitration agreement’s limitation on statutory remedies renders the agreement unenforceable on public policy grounds.
PARTIES / SUBSTITUTION / WRONGFUL DEATH ACT
Smith v. R.J. Reynolds Tobacco Co., 2012 Fla. App. LEXIS 21520 (Fla. 2d DCA Dec. 14, 2012) a divided court held in this Engle case that when the plaintiff died, the court must grant the personal representative’s motion for substitution of parties and amendment of the complaint. See Ramirez, 1-10 Florida Civil Procedure § 10-8, n.338. The court certified conflict with Capone v. Philip Morris U.S.A. Inc., 56 So. 3d 34 (Fla. 3d DCA 2010), rev. granted, 75 So. 3d 1243 (Fla. 2011), and Ruble v. Rinker Material Corp., 59 So. 3d 137 (Fla. 3d DCA 2011), rev. granted, 75 So. 3d 1245 (Fla. 2011) .
NEW PANEL – NEW RESULT
Clark v. Bluewater Key Rv Ownership Park, 2012 Fla. App. LEXIS 21719 (Fla. 3d DCA Dec. 19, 2012) granted rehearing and reversed a previously well-written and well-reasoned opinion reported at: Clark v. Bluewater Key RV Ownership Park, 2012 Fla. App. LEXIS 5482 (Fla. 3d DCA Apr. 11, 2012). The dissenter wrote the majority opinion, which simply adopted “the opinion of the trial court, upon which we cannot improve and therefore adopt en [sic] haec verba.” To save you a trip to the dictionary, “in haec verba” is Latin for “in these words,” and refers to incorporating verbatim text into some other legal document. To which I say: “non necessario recte sed ultimus.”
Otaola v. Cusano's Italian Bakery, 2012 Fla. App. LEXIS 21714, 1-2 (Fla. 3d DCA Dec. 19, 2012) reversed a dismissal with prejudice a widow’s wrongful death lawsuit against defendant based on a pre-suit settlement and payment of policy limits ($1,000,000.00) by one of defendant’s insurers (Allstate Insurance, a non-party) without a release of defendant or its excess coverage insurer (AIG, also a non-party). Defendant argued that either the settlement should be rescinded as an incomplete settlement (and all funds disgorged) or, alternatively, it should be enforced as if the wrongful death lawsuit was completely settled. The court concluded that defendant was not entitled to such relief and remanded the case so that the wrongful death lawsuit could be prosecuted to its conclusion (though giving full effect to the substantial recovery realized by plaintiff through Allstate’s tender and payment of its coverage limits).