Monday, June 24, 2013

New Opinions for Mid June


American Express Co. v. Italian Colors Restaurant, 570 U.S. --- (June 20, 2013) was a 5-3 decision (Sotomayor recused) holding that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.  At least that was the issue as framed by Justice Scalia writing to the majority.  Justice Kagan in dissent expressed it differently:
Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.
And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.

Franks v. Bowers, 2013 Fla. LEXIS 1222 (Fla. June 20, 2013) provides the "on the other hand."  This is the latest anti-Arbitration decision of the Florida Supreme Court.  The patient signed a Financial Agreement containing a very broad arbitration clause.  The court again found reasons to invalidate the parties’ agreement by finding that the damages clause violated public policy and was not severable from the remainder of the arbitration provision.  As the dissent by Justice Canady (with Polston, C.J., concurring) points out, the majority opinion never discussed why there was a conflict with Univ. of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993) and was wrong on the merits.  There is no discussion of the Federal Arbitration Act, so I must assume that the parties agreed the Act did not apply.

Suzlon Energy v. Ventus De Nicar., 2013 Fla. App. LEXIS 9610 (Fla. 3d DCA June 19, 2013) fortunately corrects on rehearing a decision I criticized back on February 11, 2013, where the majority had basically retried an issue which had been decided by the arbitrator adversely to the appellant.  I am glad Judge Salter’s dissent ultimately prevailed on rehearing.


Marquez v. Bluecare Home Health Svcs., 2013 Fla. App. LEXIS 9650 (Fla. 3d DCA June 19, 2013) strictly construed F.S. § 77.041(3) where the defendant served a claim of exemption and request for hearing to a writ of garnishment and the plaintiff never filed a sworn written statement contesting the defendant’s claim within three business days.


Cortez v. Palace Resorts, Inc., 2013 Fla. LEXIS 1226 (Fla. June 20, 2013) – sometimes you can tell where an opinion is headed just by the way the court frames the issue:  “The underlying question in this case is whether the forum non conveniens doctrine was erroneously applied to force a United States citizen to litigate her negligence action in Mexico, when her lawsuit was filed against a corporation with its primary place of business in Florida and where the allegations of the complaint relate to an incident that took place in Mexico but center on conduct occurring in Florida.”  Needless to say, the supreme court reversed the Third District.  Kudos to Judge Rothenberg for an excellent dissent.
The opinion written by Justice Pariente makes clear that an out-of-state resident is still entitled to a strong presumption against disturbing the plaintiff’s initial choice of forum.Second, the Third District also erred, as fully explained in Judge Rothenberg’s dissent, by failing to focus on the fact that although this lawsuit involves an assault that occurred in Mexico, the allegations of negligence in this case derive from conduct in Florida by defendants with their primary place of business in Florida.” (emphasis in the original).


Hall v. R.J. Reynolds Tobacco Co., 2013 Fla. App. LEXIS 9649 (Fla. 3d DCA June 19, 2013) affirmed an order transferring a case from Miami-Dade to Orange County based on F.S. § 47.122, where the plaintiff were always residents of Orange County during their history of smoking and their medical treatment and Miami-Dade had no relevant connection to the case, other than the location of plaintiffs’ lawyers.


Capone v. Philip Morris United States, 2013 Fla. LEXIS 1180 (Fla. June 13, 2013) reversed the Third District and approved Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003) in the interpretation of F.S. § 46.021, stating that no cause of action dies with the person, and F.S. § 768.20, stating that no action for personal injury survives the death of the plaintiff.  The Court explained that “the [Wrongful Death] Act implemented a process of substitution; that is, where an injured plaintiff succumbs to injuries allegedly inflicted by a tortfeasor, the damages that the decedent could have recovered for pain and suffering had he or she not died are, in effect, transferred to the survivors of the decedent.”


Tsafatinos v. Family Dollar Stores of Fla., 2013 Fla. App. LEXIS 9841 (Fla. 2d DCA June 21, 2013) held that the an owner/lessor’s a claim for third party indemnification arising out of the operation of the lease was not barred by the workers’ compensation statute, where the owner/lessor was sued by the employee of the lessee.  Furthermore, the lessor was not restricted by the allegations in the employee’s complaint.  However, the lessor did not properly plead a claim for common law indemnity because he failed to show the existence of any special relationship between himself and the lessee that would make the lessor vicariously, constructively, derivatively, or technically liable to the plaintiff because of the lessee’s negligence or fault.  As to the lessor’s claim for breach of the lease agreement by failing to name him as an additional insured, the court erred in dismissing it with prejudice, but the claim could not be maintained as a third-party claim.  The claim would have to filed separately.

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