Friday, June 28, 2013

SUPREMES ONLY (and the 11th) TODAY

Mut. Pharm. Co. v. Bartlett, 2013 U.S. LEXIS 4702 (U.S. June 24, 2013) reiterates that the Supremacy Clause dictates that state laws that conflict with federal law are “without effect.” Even in the absence of an express pre-emption provision, state laws may be impliedly pre-empted where it is “impossible for a private party to comply with both state and federal requirements.”  In the instant case, it was impossible for Mutual to comply with both its state-law duty to strengthen the warnings on the drug’s label and its federal-law duty not to alter the drug’s label. Accordingly, the state law was pre-empted.
Guarino v. Wyeth, LLC, 2013 U.S. App. LEXIS 12966 (11th Cir. Fla. June 25, 2013) also involved a generic drug.  The court affirmed the dismissal of claims against the brand-name manufacturers of a prescription drug, and summary judgment in favor of  the manufacturer of its generic equivalent because the claims were preempted by federal law and that even if they were not preempted they would fail on the merits. They also concluded that Florida law recognizes no cause of action against the brand manufacturer of a drug when a plaintiff admits to having only taken the generic form of that drug. Applying PLIVA, Inc. v. Mensing,     U.S.    , 131 S. Ct. 2567, 2578, 180 L. Ed. 2d 580 (2011), the court concluded that the claims were preempted by federal law because generic manufacturers operate under a “duty of sameness,” which requires that their labels be at all times identical to the brand-name label of the same drug.  Because the claims were premised upon an allegedly inadequate warning, they were all preempted by federal law.
Rodriguez v. Miami-Dade County, 2013 Fla. LEXIS 1314 (Fla. June 27, 2013) revisits the proper use of the writ of certiorari when a governmental entity raises sovereign immunity as a basis for a motion for summary judgment, which the trial court denied.  The plaintiff, a business owner, filed suit against Miami-Dade County, alleging that he was negligently shot by a police officer responding to a burglary alarm at his place of business.  The Third District concluded that review by certiorari was appropriate and that the County was entitled to sovereign immunity as a matter of law.  The Florida Supreme Court reversed stating that Miami-Dade County’s claim that it was entitled to sovereign immunity was not reviewable by a petition for writ of certiorari because there was no irreparable harm and because there were essential facts in dispute. It further held that the Third District erred in concluding that a “police emergency exception” conferred planning-level sovereign immunity on the County in this case.

Nunez v. Geico Gen. Ins. Co., 2013 Fla. LEXIS 1315 (Fla. June 27, 2013) answered in the negative a question certified from the Eleventh Circuit: whether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an examination under oath as a condition precedent to recovery of personal injury protection benefits, citing Custer Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086, 1091 (Fla. 2010).  A recent amendment to the statute provides otherwise, but did not take effect until January 1, 2013, and did not inform or control the disposition of the present case.


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.

Saturday, June 8, 2013

New Opinions in June


Effective July 1, 2013, electronic filing of documents through the eDCA secure portal will become mandatory for attorneys.  Registration for eDCA began on June 3, 2013.  I took over technology for the court when Judge Jorgenson died in 2003, and spent many years working toward this goal.  I find it ironic that it should finally happen on the same day as Judge Shepherd takes over as chief judge.


Hope v. Citizens Prop. Ins. Corp., 2013 Fla. App. LEXIS 8891 (Fla. 3d DCA June 5, 2013) involved over a four-year delay in filing a claim resulting in summary judgment in favor of the insurer.  The court affirmed, but not on the same grounds as the trial court, which relied solely on Kroener v. Florida Insurance Guaranty Ass'n, 63 So. 3d 914 (Fla. 4th DCA 2011).  Later cases receded from and clarified Kroener, holding that if the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.  Once the presumption of prejudice is raised in favor of the insurer, the burden shifts to the insured to show that the insurer was not prejudiced by untimely pre-suit notice of loss.
On de novo review, the Third District concluded that the record did not set forth evidence sufficient to rebut the presumption.  Hope addressed the issue of prejudice in his response to the motion for summary judgment by attaching a homeowner's affidavit, a roofer's repair estimate and the public claims adjuster's report listing various repairs necessary to the roof and house structure. That evidence, however, was deemed conclusory and failed to rebut the presumption of prejudice where the passage of time rendered Citizens unable to determine exactly what current damage was directly attributable to Hurricane Wilma, and thus a covered loss.


Bleich v. Chicago Title Ins. Co., 2013 Fla. App. LEXIS 8895 (Fla. 3d DCA June 5, 2013) affirmed the summary judgment granted in a claim that the insurance company was uniformly overcharging for title insurance in mortgage refinance transactions.  Apparently when the insurer should have been charging the lower “reissue rates,” the decision allows the insurer to be willfully blind when presented with a prior policy.  Such a claim, if true, “is more properly addressed on an individual basis based on specifically pled allegations.  Crafting a statute to curb the potential abuse prophesied by the appellants is, again, the province of the legislature and not the judiciary.”
Commentary:  It is hard enough to get the Third District to affirm when the trial court certifies a class action and the standard of review is abuse of discretion. 


Castro v. Charter Club, Inc., 2013 Fla. App. LEXIS 8852 (Fla. 3d DCA June 5, 2013) reversed in a 15-page opinion by Judge Rothenberg the denial of a motion to vacate a final judgment of foreclosure where the defendants were served by publication.  Counsel for plaintiff had been in contact with defendants’ daughter and had negotiated terms to pay down the debt to the Association.  Additionally, (1) the affidavit of diligent search filed by the Association merely stated that the Castros’ “Residence [is] Unknown,” insufficient to satisfy the “particularity” requirement of F.S. § 49.041; (2) the search was not diligent because it did not reasonably employ the knowledge at its command.


Allstate Ins. Co. v. Marotta, 2013 Fla. App. LEXIS 8915 (Fla. 4th DCA June 5, 2013) reversed the denial of a motion for a new trial based on the cumulative effect of all the errors.  “It is improper for counsel to suggest in closing argument that a ‘defendant should be punished for contesting damages at trial’ or that defending a ‘claim in court’ is improper.”  Likewise, improper were comments urging the jury to punish Allstate for defending the claim in court.  In addition, the comment that there was a debt created by that uninsured motorist ran afoul of the rule that an uninsured motorist insurance carrier is entitled to raise and assert any defense that the uninsured motorist could have argued.
The court also found the cross-examination of a doctor improper as to the absence of detailed records showing the number of and payment for compulsory medical examinations performed by him for Allstate.  The doctor was not required to produce information on the specific topics referred to in the questioning.
Finally, the provision in Allstate's policy providing that costs are to be paid by the party incurring them was found unenforceable, as it would not provide the insured with the same recovery had the tortfeasor been insured to the same extent of the insured.


Sterling Fin. & Mgmt. v. Gitenis, 2013 Fla. App. LEXIS 8834 (Fla. 4th DCA June 5, 2013) reversed for the entry of a directed verdict, a personal injury action based on an injury sustained by a worker who fell off the roof. The plaintiff brought suit against the owner of a condominium conversion project, the general contractor, the independent contractor that hired him, and the property manager.  The appeal only concerned the judgment obtained against the property manager on the theory that the company directed and controlled the manner in which the plaintiff performed his work. The evidence at trial demonstrated that the property manager did not participate in the details of the work to the extent necessary to make it liable to an employee of an independent contractor for the negligence of the contractor.


Dixon v. Express Equity Lending Group, LLLP, 2013 Fla. App. LEXIS 8887 (Fla. 4th DCA June 5, 2013) explaining that although the lender’s president testified that the lender was the owner and holder of the note, the special indorsement appearing on the back of the original note suggested otherwise. Under F.S. § 673.2501(1), the special indorsement stating “pay to the order of U.S. Century Bank” established that only U.S. Century Bank had standing to bring the foreclosure action.


Vivot v. Bank of Am., 2013 Fla. App. LEXIS 9052 (Fla. 2d DCA June 7, 2013) reversed an order denying Vivot’s motion for attorney's fees in this foreclosure action that was filed by Bank of America's predecessor in interest and was dismissed for failure to prosecute. Vivot became the prevailing party when the foreclosure suit was dismissed for failure to prosecute.  He gave notice of his claim for fees in his answer and timely filed his motion for attorney's fees. Pursuant to F.S. § 57.105(7), the provisions of the note and mortgage permit Vivot to claim attorney's fees as the prevailing party.

Saturday, June 1, 2013

New Opinions for the Week of May 27, 2013


Effective August 1, 2013, to join Gunster.  The article below quotes me as bemoaning the lack of compensation of judges.  This is the fourth judge from our court to leave the Third District before mandatory retirement, not to mention all the judges who have left the circuit bench.


The Daily Business Review also published my article on the International Centre for Settlement of Investment Disputes (ICSID) on May 28, 2013, but you might have missed it as you were too busy reading my blog, which I updated the same day.


Motors, Pumps & Accessories, Inc. v. Miami Medley Bus. & Indus., LLC, 2013 Fla. App. LEXIS 8476 (Fla. 3d DCA May 29, 2013) a divided court reversed a default and a default judgment entered after the client and his attorney failed to attend a mediation or a motion for sanctions.  New counsel claimed that the client was never advised of the mediation or the default.  Additionally, it alleged the judgment was for an unliquidated sum and was entered without first conducting an evidentiary hearing.  The court relied on Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), stating that the motion granting sanctions did not discuss any of the Kozel factors.


Estrada v. Sorrento Townhomes, LLC, 2013 Fla. App. LEXIS 8461 (Fla. 3d DCA May 29, 2013) reversed an order denying plaintiff’s motion to commence proceedings supplementary.  The plaintiff had pled all the requirements: (1) that the party is the holder of an unsatisfied judgment; (2) identifies the issuing court and case number; (3) states the unsatisfied amount of the judgment; and (4) confirms that execution is valid and outstanding. See F.S. § 56.29(1).  The court rejected the argument that a magistrate must be appointed to conduct a preliminary evidentiary hearing on the merits of the movant’s claim before it authorizes the commencement of the proceedings supplementary. “Such a procedure is as unworkable as it is unsupported by law.”


JA&M Dev. Corp. v. Perez, 2013 Fla. App. LEXIS 8483 (Fla. 3d DCA May 29, 2013) quashed an order denying a motion to compel a neurological examination relying on Gomez v. Rendon, 2013 Fla. App. LEXIS 5365 (Fla. Dist. Ct. App. 3d Dist. Apr. 3, 2013) (granting certiorari where the trial court denied a second medical examination by defendant’s doctor).
Commentary:  Why do we still use IMEs, which stands for Independent Medical Examinations?  When I was a trial judge, there was nothing “independent” about doctors conducting examinations on behalf of defense firms or insurance companies.  The word “independent” does not appear anywhere in Florida Rule of Civil Procedure 1.360.


First Baptist Church of Cape Coral v. Compass Constr., 2013 Fla. LEXIS 1108 (Fla. May 30, 2013) explained that the use of an alternative fee recovery clauses were approved in See Kaufman v. MacDonald, 557 So. 2d 572, 573 (Fla. 1990).  “The reasoning we used to uphold alternative fee recovery clauses with contingency fee alternatives in Kaufman, Moxley, and Wasser applies to alternative fee recovery clauses in general, regardless of the other basis for payment. Once a fee-shifting statute or contract triggers a court-awarded fee, the trial court is constrained by Rowe and its progeny in setting a fee that must be reasonable. This alleviates any concern that enforcing an alternative fee recovery clause will result in the nonprevailing party paying an unreasonable fee.”
Dissent: In a low-key dissent, Justice Lewis wrote:Today the majority surprisingly and, in my view, incorrectly endorses a universal implementation of alternative attorney fee recovery clauses with an astonishing disregard for its simultaneous evisceration of the well-established distinction between statutorily authorized attorney fee awards and attorney fees assessed as damages under the concept of indemnity. The majority additionally disregards decades of controlling precedent simply because it is unfavorable to its holding and approves awards of attorney fees not actually incurred, an award of money readily and clearly in violation of due process when assessed as indemnification.”


Early Auction Co. v. Koelzer, 2013 Fla. App. LEXIS 8467 (Fla. 4th DCA May 29, 2013) enforced a forum selection clause in a suit by a Florida resident against an auction house on a purchase made by telephonic bid.  “The plaintiff, as a bidder in the auction, is held to the published terms of the auction regardless of whether he actually read them. Before the auction, the plaintiff received a catalog setting forth the Terms and Conditions of Sale at Auction, including a forum selection clause.”


Rocket Group, LLC v. Jatib, 2013 Fla. App. LEXIS 8469 (Fla. 4th DCA May 29, 2013) quashed an order that refused to allow the filing of documents under seal where the parties agreed that they included confidential materials.  Although confidential business documents are not specifically included in Fla. R. Jud. Admin. 2.420(c), any court record may be determined to be confidential if doing so is necessary to “avoid substantial injury to a party by disclosure” or to “comply with established public policy.”