All entries for April 2017

Attorney-client privilege could shield law firms from being forced to reveal whether they steer clients to medical providers that unreasonably (or perhaps fraudulently) inflate medical bills for injury cases

An opinion issued by the Supreme Court of Florida in April touched on a mixture of long-time and more recently trending complaints about personal injury litigation in Florida and raised serious questions on what could be argued has become an industry of sorts. 

In Worley v. Central Florida Young Men's Christian Ass'n, Inc. 42 Fla. L. Weekly S443b (Fla., 2017), the Court examined practices by a large and very well-known Florida law firm (you've seen the billboards and likely heard the radio or television ads, as well) and the firms "network" of physicians and health care providers and how the firm advises its clients.  

In Worley, the allegations of the insurance company were essentially that the firm was steering clients (including perhaps those that did not ask for help seeking medical attention) to several health care providers that had a "cozy agreement" with the firm.  The insurance company argued that cozy relationship included the fact that health care providers provided care almost entirely on the basis of "letters of protection" (which means the facility agrees it will provide services with the hope of getting paid from the personal injury lawsuit and not the patient at the time of service) and that the bills generated for those services were extremely high (or, in some cases, potentially fraudulently high) compared to other providers in the area.  Implied in the claims by the insurer is the concept that these providers could be rendering these bills as part of a scheme to help the law firm increase damages for purposes of settlement or trial.  

The Supreme Court did not allow the insurer to do further discovery into the nature and extent of the relationship between it and the health care providers through the firm's client and further refused to allow inquiry into whether the firm "steered" the client to these providers.  This ruling may help keep the shroud in place which covers the potentially seedier side of financial relationships between some law firms and some medical providers in personal injury cases.  Some may argue that this ruling could embolden law firms to push the limits of ethical or legal behavior in relationships with care providers given the financial incentive to bend or break the rules and the protections from discovery that this ruling could yield.  


Fourth District Moves to "But-For" Causation Standard in Employment Discrimination Cases

The Fourth District Court of Appeals issued an opinion on April 5, 2017 that receded from its previous precedent on the issue of the causation standard a plaintiff must successfully prove in a Florida Civil Rights Act retaliation claim.  The move appears to be a win for employers, as it raises the standard from "wholly unrelated"--meaning the employee needed only previously show that the protected activity by the employee and the retaliatory action by the employer were not "wholly unrelated'--to "but for"; meaning that employees must now show that they would not have been terminated or retaliated against "but for" the protected activity.

This represented a change from the court's precedent as set forth in Guess v. City of Miramar, 889 So. 2d 840 (Fla. 4th DCA 2004) to bring the standard of proof in line with that rendered by the United States Supreme Court in its decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013).  Therefore, though the protections remain the same for employees under the Fourth District's new ruling, the burden of proving a claim of wrongful conduct by the employer has increased on employees.  

If you are an employee that believes you are being retaliated against following some protected activity (e.g., you participated in an investigation of a discrimination claim or made such a claim yourself or threatened to or did report illegal activity by the employer), the advice of an attorney can be in some cases essential to ensure you file your claim in a timely manner and help stop retaliatory actions by your employer.  

If you are an employer that needs help ensuring that it is taking the right steps in handling discrimination claims or investigations or need help educating and training managers in retaliatory behaviors to avoid, an attorney can be an invaluable resource, as well.  In either case, the Employment Law attorneys at Icard Merrill are available to help.  

 


Court Upholds 'Home Field Advantage' for Cable Companies in the Battle Against Satellite TV

Satellite television often has a number of unseen hurdles and obstacles that is must navigate in order to reach the dish mounted on your roof.  Though people often think of storms, debris, signal interference, and other obstacles, satellite must also overcome market and legal hurdles, as well, as one recently decided case discusses. 

In the case of Florida Department of Revenue v. DIRECTV, Inc., 42 Fla. L. Weekly S455a (Fla., April 13, 2017), the satellite television provider DirecTV challenged a tax provision called the "Communications Services Tax," which charged a rate of almost eleven percent on satellite services compared to a rate of just under seven percent on cable services originally (currently, satellite services are charged almost double that of cable, with over nine percent for the former and less than five percent for latter).  

Understandably, DirecTV felt as though this law helped create an unfair playing field for the competing service providers.  It sought to have the tax invalidated under the requirement that "statutes that openly discriminate against out-of-state economic interests in order to protect in-state interests are subject to a per se rule of invalidity.” Simmons v. State, 944 So. 2d 317, 330 (Fla. 2006).  

However, despite what is arguably a clear cut case of discrimination in practical application, the Supreme Court of Florida held that the tax did not discriminate either facially, in its intent, or in its practical application.  The Court also found that, despite heavy investment in local and state-wide infrastructure, cable service providers were not an in-state interest for purposes of the challenge by DirecTV under the Commerce Clause. 

Many things in business which seem clear cut are not so clear under the law.  Having the advice and assistance of an experienced business attorney can not only help level the playing field for your business, but can often also help save a business a substantial amount of money in the long-run.  Contact the Business attorneys at Icard Merrill today for a consultation about your business rights. 


Child Placement Under the Interstate Compact on the Placement of Children (ICPC)

Placement of children with a parent is one of the most challenging and emotional disputes that take place in civil courts.  Things can often be even more tense and challenging when one parent resides out of state. In order to better position courts to tackle these challenges, Florida is one of a number of states that have adopted the Interstate Compact on the Placement of Children (ICPC) via Section 409.401, Florida Statutes.  

A recent case outlines some of the requirements the ICPC places on Florida courts.  In Lawler v. State, 42 Fla. L. Weekly D879 (Fla. 1st DCA April 18, 2017), the First DCA was faced with the unenviable task of unwinding a notedly "well intentioned" order by the trial court on the basis of failure to adhere to the requirements of ICPC.  

Specifically, the trial court was found to have failed to obtain a home study of the Indiana home of the father of two of the children, the children could not be allowed to remain in his custody until the home study was completed.  The record showed that the father and the Department of Health (through DCF) had attempted on several occasions a home study report from Indiana officials without success.  Despite the fact that the children did well residing with the father after being fostered with grandparents following removal from the mother's home due to a domestic violence incident, the law required a home study before final placement could be made.  Though the appellate court rang a sympathetic (and almost apologetic) tone, it upheld the requirements of the law and sent the case back for further proceedings on that issue. 

If you are facing questions about the placement of children or the shared parental responsibilities and requirements under Florida law, reach out to the Family Law attorneys of Icard Merrill today for help.  


Periodic Alimony in Long- versus Short- Term Marriages in Florida

Two cases recently decided highlight the differences between alimony awards depending on whether the marriage is considered short-term or long-term.  RODRIGUEZ v. LORENZO, 2017 Fla. App. LEXIS 4653, 42 Fla. L. Weekly D 790, 42 Fla. L. Weekly D 790 (Fla. Dist. Ct. App. 3d Dist. Apr. 5, 2017) dealt with a marriage of four years at the time of filing (six years by the time the decree was entered dissolving the marriage), while COOK v. COOK, 2017 Fla. App. LEXIS 4620, 42 Fla. L. Weekly D 770, 42 Fla. L. Weekly D 770 (Fla. Dist. Ct. App. 2d Dist. Apr. 5, 2017) dealt with a marriage that lasted eighteen years.  

Under Florida law, there is a rebuttable presumtion that "a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater . . . . until the date of filing of an action for dissolution of marriage." § 61.08, Fla. Stat. Under Florida statutes, there is a rebuttable presumption that a marriage that is short term should not result in permanent periodic alimony, as noted by the Court in the Rodriguez case. Whereas, in long-term marriages, the Court must determine whether there is a need by the spouse seeking alimony and whether there is an ability to pay by the other spouse.  If those criteria are both met, alimony is then awarded, as mentioned int he Cook case.  

As is often the case, these presumptions are usually rebuttable, which makes each case a very fact-specific endeavor.  The help of a trusted and experienced attorney can often mean the difference in many thousands of dollars over the course of life after divorce.

If you have questions about whether you are entitled to alimony or whether your spouse may be entitled to alimony if a claim for it is made, contact the excellent Family Law attorneys at Icard Merrill today.  They can help you understand your rights and obligations. 

 

 


Ruminations on a Default Notice and Witness Foundation

We have on several occasions in this blog touched on the requirements of standing for the lender, evidentiary requirements for the default notice, and foundation for bank witnesses.  Though recently there had seemed to be a tightening of requirements for proving the sending of the default notice and for qualifying a witness to speak on another institution's default notice generation protocols and record-keeping, a recent case seems to again potentially lessen the burden on lenders seeking to foreclose.  

In the case of JPMORGAN CHASE BANK NATIONAL ASSOCIATION v. JEAN PIERRE 2017 Fla. App. LEXIS 4632, 42 Fla. L. Weekly D 781, 42 Fla. L. Weekly D 781 (Fla. Dist. Ct. App. 4th Dist. Apr. 5, 2017), the Fourth District Court of Appeals reversed judgment in favor of the borrowers and ordered entry of judgment for the lender (actually, the successor in interest to the lender) on the basis that the trial court's findings that the bank had not proven that a default notice had been sent and that it had not proven standing were contrary to the law. 

In this case, though the witness that appeared worked for a third party servicer for the bank, she speculated about the date upon which the note had been transferred and testified that the servicer--not the bank that brought the action--owned the note.  Further, she testified that she had learned during her training at the servicer about the original (not the current lender that her company was actually representing) lender's  default notice generation protocols and that she was aware, generally, with those protocols and that her company had verified through collection notes that the letter had been sent.  

Citing issues with standing given the testimony by the record custodian that a party other than that which filed the complaint actually owned the note and testimony which apparently led the trial court to determine the witness did not have actual familiarity with the originating lender's default notice policy, the trial court entered judgment in favor of the borrowers.  The appellate court reversed and ordered entry of judgment in favor of the lender, stating (in sum) that the stated familiarity with the process by which a third party originating lender generally goes about sending letters with notice of default was sufficient and that it did not particularly matter when the witness believed the endorsement was signed transferring the note and it did not particularly matter that the witness thought her company owned the note in question rather than the Plaintiff lender.  

A subtle maneuver was made by the appellate court here, as well.  Though the standard of review was de novo, since the issues were deemed a matter of law, the question of whether the witness knew about the default notice procedure and whether a letter was sent was an issue of fact, since the borrowers had denied that a letter had been sent.  The appellate court seems to have taken the bank witness testimony at face value and disregarded the denial by the borrowers that any notice had been sent.  The trial court (which is presumed to be in the best positoin to weigh credibility of a witness) was disregarded by the appellate court on this point, which perhaps was due to the fact that the trial court did not make a finding on the record that the witness was not credible in her testimony. 

Compare this case to the recently reviewed case of Allen v. Wilmington Trust, N.A., 2017 Fla. App. LEXIS 3970 (Fla. 2d DCA 2017), which we discussed here.  

If you have questions about a foreclosure, a contract, or other real estate dispute reach out to the foreclosure attorneys of Icard Merrill today.