New Cases

ATTORNEY’S FEES

Diamond Aircraft Indus., Inc. v. Horowitch, 2013 Fla. LEXIS 34 (Fla. Jan. 10, 2013) held that a defendant can recover attorney’s fees under Fla. Stat. § 501.2105 where the plaintiff brought an unfair trade practices claim but the trial court decided that the substantive law of another state governed the claim and the defendant ultimately prevailed on the claim.  A plaintiff cannot invoke the protections of the act by filing an action under its provisions, but then rely on the act’s ultimate inapplicability as a shield against the application of the act’s attorney’s fees provision.  The defendant, however, could only recover fees for the time expended prior to the trial court’s determination than Florida law did not apply.  The court also held that Fla. Stat. § 768.79 did not apply to an action in which a plaintiff sought both damages and equitable relief, and in which the defendant had served a general offer of judgment that sought release of all claims. Furthermore, the court concluded that there was no basis to establish an exception for instances in which the equitable claim lacked serious merit. 

http://www.floridasupremecourt.org/decisions/2013/sc11-1371.pdf

ARBITRATION

Pulte Home Corporation v. Vermillion Homeowners Association, --- So. 3d --- (Fla. 2d DCA January 16, 2013) reversed an order denying the builder’s motion to compel arbitration of a lawsuit filed by the Homeowners Association alleging certain construction defects, but only to the extent that the Association was suing as a representative of the homeowners, all of whom had agreed to arbitrate their claims.  But the court left open the possibility that the Association could amend its complaint to allege a more limited claim involving property owned by the Association.  The court stated that the Association could not avoid the obligation to arbitrate by alleging its claims in an ambiguous manner.  But the Association should not be compelled to arbitrate a claim that is actually the Association's claim in its own right simply because the complaint lacked detail.  Thus, the court reversed the order denying arbitration but without prejudice for the Association to amend its complaint

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/January/January%2016,%202013/2D12-1532.pdf

MEDICAL MALPRACTICE

Pierrot v. Osceola Mental Health, Inc., 2013 Fla. App. LEXIS 464 (Fla. 5th DCA Jan. 11, 2013) reversed a dismissal for failure to comply with the medical malpractice presuit requirements.  The decedent, a 25-year-old pregnant woman, went to a hospital with complaints of pain. The hospital “Baker Acted” her and transferred her involuntarily to Park Place.  When she arrived, she was in distress, complaining of severe abdominal pain and other symptoms.  Over the next two  days, Park Place’s employees committed various acts and omissions that resulted in her death. The complaint alleged a wrongful death claim for violations of her rights as a patient under the Baker Act, and stated that plaintiff was not seeking damages under Florida’s Medical Malpractice Act.  The claim was  not for medical malpractice, the test for which is whether the claim relies on the application of the medical malpractice standard of care. When a claim relies on a different standard provided by another statute, the claim is not  one for medical malpractice for purposes of the presuit requirements.  Furthermore, Park Place was not a health care provider.

http://www.5dca.org/Opinions/Opin2013/5D11-2513.op.pdf