Monday, February 11, 2013

New Decisions - The Good, The Bad and The Ugly


Jackson v. Shakespeare Found., 2013 Fla. LEXIS 125 (Fla. Jan. 31, 2013) held that an action based on fraud is within the scope of the arbitration provision containing the phrase “arising from or relating to.”  The court stated that the phrase is considered a broad arbitration provision because of the addition of the “or relating to” language.  It distinguished Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999), because here there was a clear contractual nexus with, and thus a significant relationship to, the contract because: (1) the fraud claim was inextricably intertwined with both the circumstances that surrounded the transaction from which the contract emanated and the contract itself; and (2) resolution of the fraud claim required the construction and consideration of duties arising under the contract. 
In Seifert, which had the same broad arbitration provision, the court concluded that the negligence-type claims at issue did not have a significant relationship to a contract because a contractual nexus did not exist between the claims and the contract. Here, although the fraud claim was based on common law fraud, it was inextricably intertwined with both the circumstances that surrounded the transaction from which the contract emanated and the contract itself. The fraud claim was based on the sellers knowingly misrepresenting facts in the published advertisement.


Suzlon Energy, A/S v. Ventus De Nicaragua, S.A., 2013 Fla. App. LEXIS 1746 (Fla. 3d DCA Feb. 6, 2013) is another example of the judicial hostility that the Federal Arbitration Act of 1925 was intended to eradicate.  Almost ninety years later, that hostility lives on.  In reversing an order confirming an arbitration award, a divided court concluded that appellee’s general manager did not have authority to initiate the arbitration.  Conspicuously absent from the opinion is any discussion of the basis for vacating an arbitration as limited by the FAA’s 9 U.S.C. §10 to corruption, misconduct, or exceeding authority.  In reviewing the decision, using a de novo standard, the court re-examines an issue that had already been decided adversely to the appellant by the arbitrators.  An excellent dissent by Judge Salter takes the majority to task.
Commentary: This decision should have a chilling effect on using Florida as a venue to resolve international commercial disputes.  When our courts are willing to retry issues already decided by an arbitration panel, without regard to the limited grounds authorized by statute to vacate an arbitration award, we not only undermine predictability, but we increase the cost and delay of arbitration proceedings.


Spring Lake NC, LLC v. Holloway, 2013 Fla. App. LEXIS 1537 (Fla. 2d DCA Feb. 1, 2013) presented another order denying a motion to compel arbitration in a wrongful death case in a nursing-home-type facility.  The court denied arbitration because the decedent had limited reading abilities and could not have understood what she was signing; thus, there was no meeting of the minds.  The court stated: “Our modern economy simply could not function if a ‘meeting of the minds’ required individualized understanding of all aspects of the typical standardized contract that is now signed without any expectation that the terms will actually be negotiated between the parties.”,%202013/2D12-2140.pdf


Barrnunn LLC v. Talmer Bank and Trust, 2013 Fla. App. LEXIS 1611 (Fla. 2d DCA Feb. 1, 2013) reversed a foreclosure for failure to comply with Fla. Stat. § 702.10(1), by which a party may request the court to enter an order to show cause why a final judgment should not be entered.  The court explained that once the defendant files its defenses, that constitutes cause and precludes the entry of a final judgment.,%202013/2D12-446.pdf


Suncoast Home Improvements, Inc. v. Robichaud, 2013 Fla. App. LEXIS 1539 (Fla. 2d DCA Feb. 1, 2013) held that the place-of-payment venue rule applied in an action by plaintiff against homeowners.,%202013/2D12-2645.pdf


Fish Tale Sales & Serv. v. Nice, 2013 Fla. App. LEXIS 1463 (Fla. 2d DCA Feb. 1, 2013) quashed an order denying a motion to file a third-party complaint, explaining that unless the defendant is permitted to implead the third parties potentially responsible for the plaintiffs’ injuries, it may be exposed to an inconsistent outcome in any independent action against those parties.
          The court concluded that the motion should have been granted under Florida Rule of Civil Procedure 1.180(a) and courts should liberally allow defendants to assert third-party claims for indemnity, particularly at the beginning of a lawsuit, so as to fulfill the purpose of the rule to bring all interested parties into the same action.
Although the availability of common law indemnity is quite limited, a nonnegligent tortfeasor is entitled to seek indemnity against the manufacturer of a defective product that injures a plaintiff to whom the nonnegligent tortfeasor may be held liable. Similarly, a tortfeasor who shares a common legal liability to a plaintiff with another tortfeasor may seek contribution from the second tortfeasor.  Here the third-party complaint stated a viable claim for indemnity against the third-party defendants. The third-party complaint alleged that defendant was a nonnegligent tortfeasor who may be held strictly liable for a defective product manufactured by the third-party defendants. And the fact that a jury may find defendant to be actively negligent rather than merely passively negligent is irrelevant to whether it should be permitted to plead an indemnity claim against the third-party defendants.,%202013/2D12-2694.pdf


Limones v. Sch. Dist. of Lee County, 2013 Fla. App. LEXIS 1821 (Fla. 2d DCA Feb. 6, 2013) held that the school board did not have a duty to maintain, make available or use an automated external defibrillator when plaintiff collapsed on a soccer field.,%202013/2D11-5191.pdf


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