ARBITRATIONS
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.
GARNISHMENTS
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.
FORUM NON CONVENIENS
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).
INCONVENIENT VENUE
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.
WRONGFUL DEATH /
AMENDMENTS / RELATION BACK
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.”
INDEMNIFICATION /
THIRD PARTY PRACTICE
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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