All entries for June 2017

Courts blow Proposal for Settlement doors wide open in wake of Supreme Court case

Following the Supreme Court of Florida's decision in Kuhajda v. Borden Dairy Co., 41 Fla. L. Weekly S471 (Fla. October 20, 2016), we noted ambiguity in the landscape of proposals for settlement would likely lead to a slippery slope of formerly fatal technical deficiencies that would now be potentially acceptable for purposes of awarding fees.  That slope appears to be drawing some early action within the Second District in the case of Polk Cty. v. Highlands-In-The-Woods, L.L.C., 42 Fla. L. Weekly D1135 (Fla. 2d DCA May 19, 2017).

As we previously noted, prior to the Kuhajda decision, the Supreme Court of Florida's precedent from Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013), even minute and seemingly irrelevant technical deficiencies could render an offer of judgment invalid for the purpose of seeking attorneys' fees .   Under that precedent, courts had invalidated offers on the basis of failure to state both whether attorneys’ fees were included in the offer and whether they were sought in the claim (i.e., simply stating one or the other would not suffice). Deer Valley Realty, Inc. v. SB Hotel Assocs. LLC, 190 So. 3d 203, 205 (Fla. 4th DCA 2016).

However, in Polk Cty. v. Highlands-In-The-Woods, L.L.C., the Second District held that the offering party did not need to address specifically the issue of attorneys' fees in the offer, did not need to address the issue of punitive damages in the offer, and did not need to address the issue of injunctive relief in the offer.  In essence, where there may have been previously three potentially fatal deficiencies, the Second DCA found none.  The Court reversed the trial court's denial of the motion for attorneys' fees premised on the offer of judgment at issue and remanded to determine the amount of fees that were to be awarded. 

The landscape of procedural mechanisms for obtaining attorneys' fees is shifting potentially now more than ever.  The help of an experienced litigation attorney could mean the difference in thousands of dollars in attorneys' fees awarded either for or against a litigant.  Reach out to the attorneys of Icard Merrill today if you have questions or need help.


Technical requirements for fees under 57.105

A recent court decision took a page from the (perhaps now abandoned) book of hyper-technical requirements preceding the award of attorneys' fees in cases that has long been the purview of the Offer of Judgment/Proposal for Settlement statutory and rule scheme. 

In the case of Estimable v. Prophete, 42 Fla. L. Weekly D1312 (Fla. 4th DCA June 7, 2017), the Fourth District considered the technical prerequisites for awarding fees under the "frivolous claims" statute--S. 57.105, Florida Statutes.  In Estimable, the Court determined that, though the prevailing party had properly followed the statutory requirements of 57.105, it had failed to meet the technical requirements of Florida Rule of Judicial Administration 2.516 in that it had failed to include the language "SERVICE OF COURT DOCUMENT" followed by the case number in the subject line of the letter, did not include the name of the initial party and title of the document served in the body, and did not attach a copy of the document in PDF format (or a link to the document on the clerk's website).  Therefore, the Court determined sanctions were not appropriate and were not enforceable and reversed the trial court's order for attorneys' fees. 

This case stands as a reminder to practitioners that attorneys' fee awards without the prior agreement of the parties is still considered to be rendered in derogation of common law and will continue (at least in some statutory schemes) to be strictly construed by courts. 

If you have questions about a frivolous lawsuit claim or wish to find out your rights and risks in litigation, contact one of our experienced litigation attorneys today.


Legislative-Judicial battle over damage caps for medical malpractice claims

Another salvo was recently launched in the ongoing battle between the State's legislators and its judiciary (and, likely, personal injury lobbyists as well) on the issue of damage caps.  In this instance, the action dealt with caps on medical malpractice claims.  N. Broward Hosp. Dist. v. Kalitan, 42 Fla. L. Weekly S642 (Fla. June 8, 2017).

In Kalitan, the Supreme Court of Florida considered and dismissed notions of a "continuing medical malpractice insurance crisis" listed and argued by the State in support of damage caps on medical malpractice claims for personal injury non-economic (i.e., 'pain and suffering') damages.   The Court found that the caps violated the Equal Protection Clause, citing its own opinion in a previous case where it determined that a similar cap was unconstitutional because it "'imposes unfair and illogical burdens on injured parties' and 'does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.'"  

It seems strange to say that damage caps, which aim to reduce potential exposure for insurers, is not rationally related to that aim, however, the Court pointed out that there was a lack of evidence to suggest the caps "that were intended to reduce instances of doctors leaving Florida, retiring early, or refusing to perform high risk procedures" were actually having that effect or were even resulting in lower premiums.  The Court noted that Insurance company profits were up following the caps, but that the savings were not being passed on to individual insured physicians. 

This case certainly seems to be a situation where insurers may have made their own bed and are now being forced to lie in it.  If the insurers had been able to produce evidence that they had actually reduced premiums and increased the number of insured physicians, they may have been able to preserve the caps.  Yet, instead it appears the insurers took the stance that putting money directly into their coffers now made more business sense. 

It is unlikely this decision will end the debate (or legislation) on damage caps, especially given the State's finding that "Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude." Ch. 2003-416, § 1, Laws of Fla., at 4035


"Taylor-Made" Arbitration - Taylor Morrison Arbitration clause unenforceable, violates public policy

National homebuilder powerhouse Taylor Morrison suffered a setback on its attempts to force buyers into arbitration when they allege building code violations.  In the Second District Court of Appeals, the case of Reginald Anderson v. Taylor Morrison of Fla., Inc., 42 Fla. L. Weekly D1232 (Fla. 2d DCA May 31, 2017), dealt with the builder's attempts to enforce an arbitration agreement contained in its form Purchase and Sale Agreement against the buyers who were alleging defects in the home they purchased.

The Court determined that the Taylor Morrison contract attempted to limit or circumvent statutory protections for the buyers under Florida law, so the contract itself violated public policy and was not enforceable against the buyers alleging the construction defects.  In reaching this conclusion, the Second District stated that a contract violates public policy where it "defeats the remedial purpose of a statute or prohibits the plaintiff from obtaining meaningful relief under the statutory scheme." Anderson v. Taylor Morrison of Fla., Inc., 42 Fla. L. Weekly D1232. 

It appears, based on this ruling, that Taylor Morrison will have to go back to the figurative drawing board in order to find a way around statutory protections for buyers of its homes. 

If you have a question about or a dispute with a builder regarding a home or other purchase and sale contract, or are experiencing construction defects, the experienced construction litigation attorneys at Icard Merrill may be able to help you. 

 

Wedding Crashers - Damage and Claim Types in a Contract Action

An interesting case fact pattern helps answer a common question that clients have; "can I get pain and suffering or punitive damages in a contract case?"  In the case of Deauville Hotel Mgmt., LLC v. Ward, 42 Fla. L. Weekly D1219 (Fla. 3d DCA May 31, 2017), the Third District Court of Appeals gives a nice illustration of the damage types (and the principles underlying those types) available in a contract case.

In Deauville Hotel Mgmt., LLC v. Ward, the plaintiffs had contracted to hold their wedding reception in the defendant hotel's ballroom, but found out just hours before their wedding that the ballroom was no longer available (due to a shut down for building code violations) and the couple was forced to hold their reception for 190 people in the hotel's lobby (where other hotel patrons walked through--some in their swimsuits--and participated in the festivities).  The couple, mortified, brought the lawsuit for various types of damages, including punitive damages for intentional infliction of emotional distress (a rare exception to the Florida rule that there must be a physical touching in order to collect for purely emotional damages).   The jury actually found that the hotel had committed conduct that was so extreme and outrageous as to shock the conscience--the standard for a successful intentional infliction of emotional distress claim. 

The Third District, however, reversed on that point and nullified the emotional distress verdict.  The Court cited two cases where outrageous conduct--one in which a pastor was called a 'thief' in front of his congregation and one in which an employee was subjected to racial slurs and threats of termination--was found not outrageous enough to trigger emotional distress damages. 

Further, the Court reduced the amount of economic damages awarded to the plaintiffs on the basis that they did actually get to use portions of the "flowers, linens, photography, videography, entertainment, transportation, and cake" at the location where the wedding was held (even though they were not available for the reception) and to award them the cost as well as the use of the items would have been duplicative. 

In all, the plaintiffs likely felt emotionally abused at the hands of the appellate court following this decision, but the legal underpinnings of the decision were soundly based in the applicable law and parties curious about the way damages work in contract cases can get a helpful primer by reviewing the Court's opinion.

If you have a contract dispute or a question about your rights, reach out to one of the litigation attorneys at Icard Merrill today.

 


Icard Merrill Attorneys Participate in Leadership Sarasota 2017

card Merill attorneys Jessica Farrelly and Anthony Mangianello, participants in the Leadership Sarasota 2017 class through the Sarasota Chamber of Commerce, recently conducted the ribbon-cutting at the Roy McBean Boys and Girls Club.  Unveiled was a 'rain or shine' play area for the children, benches, and a special reading area for kids at the Boys and Girls Club.  

Each year, Leadership Sarasota classes strive to make a positive impact on the greater Sarasota Community through professionals conducting outreach efforts and spearheading special projects.  

The event was covered by the Sarasota Observer here

 

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