Arbitration & Mediation

Fourth DCA Holds Proposal for Settlement Can't Apply to Suit for Damages and Injunctive Relief

Posted on November 18, 2009
Florida lawyers find themselves facing yet another appellate decision invalidating a Proposal for Settlement. Yes, it's been about a month since a Proposal was shot down like this case. Or this one. In our instant case, which admittedly is a new twist on a tired issue, the Fourth District held that Proposals for Settlement cannot be used to resolve cases involving both claims for damages and injunctive relief...

Another Florida Court Agrees That AAA Declining Case Does Not Void Arbitration Agreement

Posted on November 08, 2009
Two of Florida intermediate appellate courts have now ruled that pre-dispute arbitration clauses which refers health care disputes to the American Arbitration Association (AAA) are nonetheless valid -- even though the AAA will decline the case -- because referral to the AAA is not typically an integral term...

Florida Supreme Court Grants Review of Nursing Home Arbitration Case

Posted on November 06, 2009
Apparently arbitration-watchers will want to be current on their nursing home case law since the Florida Supreme Court has granted review of Estate of Gessa v. Manor Care. Back in February, we wrote a long post attempting to sew together the long history of a particular nursing home arbitration agreement and the disparate treatment it has received in various Florida intermediate appellate courts...

Wife Verbally OK's Husband to Sign Papers Is Agency to Sign Arbitration Clause

Posted on November 02, 2009
In our last post, we discussed the Nebraska Supreme Court decision in Koricic / Baker v. Beverly Hallmark to find that a family member "agent" could be authorized to signed the "principal" into a nursing home but the court would later parse through the clauses to decide which terms might not be included...

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Nebraska Supreme Court Finds Reasonable People Do Not Expect Arbitration Clauses in Nursing Home Contracts

Posted on October 29, 2009
We travel out to Nebraska for a state supreme court decision in a nursing home arbitration case which, like most cases of this type, seems to present (yet another) new twist to an area which should have been fairly well scoured by now. For years, nursing homes and other health care facilities have been making arbitration "optional" so that the admission agreement is not considered an adhesion contract...

Client Must Sign Mediation Settlement Agreement (4th DCA Overlooks On Point 3rd DCA Opinion)

Posted on October 26, 2009
For a mediation settlement agreement to be enforced by a court, Florida Rule of Civil Procedure 1.730(b) requires it to be "reduced to writing and signed by the parties and counsel, if any." Few court documents require attorney and part signature -- remember this one as the exception...

Arbitration Clause Does Not Need to "Leap Off The Page" Per Florida's Third DCA

Posted on October 19, 2009
An "simple, self-contained" arbitration clause in a four page document does not need to "leap off the page," says a Panel from the Third District in National Financial Services, LLC, Bank of America Corporation, Bank of America Investment Services, Inc...

Multiple Contracts Between Parties, One Has Arbitration Clause...

Posted on October 14, 2009
The First District considered a case where, between 1987-1993, the parties entered into several contracts with broad arbitration clauses. Eleven years later, in 2004, they enter into another contract which "supplements but does not replace" the prior contracts...

Florida Assisted Living Resident Cannot Avoid Arbitration Due to Not Reading or Understanding

Posted on October 12, 2009
In what appears to be a surprisingly weak argument, a plaintiff assisted living facility resident was able to convince a Florida trial judge that she was not bound by arbitration -- despite the Resident and the power of attorney signing the arbitration agreement...

Picky Issues Control Proposals for Settlement: Proposal Served without a Certificate of Service is... VOID

Posted on October 08, 2009
Florida courts have been clear, almost to a fault, that the Proposal for Settlement rules are strictly construed. For day-to-day practitioners, that approach has created a minefield of picky technicalities complying with the Rule of Civil Procedure and the statute...

Florida Court Confirms Arbitrator Can Apply Wrong Law -- And You Have No Grounds for Appeal

Posted on October 07, 2009
Is there a "be careful what you wish for" tone in the Fifth District's recent decision where, in declining to accept an appeal out of arbitration, the Panel notes that "arbitration, after all, is a form of alternative dispute resolution..." (their emphasis) That said, there is some legal truth to the statement that arbitration is an alternative dispute forum where there are only five "narrow" grounds for appeal which are rarely invoked with success...

First DCA Holds Answer With an Arbitration Affirmative Defense is Not Waiver (Agreeing with Second DCA)

Posted on October 05, 2009
We have previously suggested that a bright line rule has yet to emerge when Florida courts consider the third prong of the Seifert test, waiver of arbitration. Thus, taking action other than filing a Motion to Compel Arbitration is not recommended for defendants (likewise, plaintiffs should be aware of any arbitration rights before filing suit)...

Proposal for Settlement Not Enforced Due to New Claim Pled after Proposal Expired

Posted on October 01, 2009
What happens when a Proposal for Settlement is served by plaintiff on defendant in good faith -- and then plaintiff later adds a new claim and beats the Proposal at trial ONLY because of the new claim? In yesterday's decision in Eucenda Segundo v. Cedric Reed out of the Third District, the panel (Shepherd, Suarez, and Rothenberg) considered that very issue...

Did Fourth DCA Create An Exception to the "Stockman Rule" Regarding Entitlement to Fees After Chapter 44 Arbitration?

Posted on September 28, 2009
Florida litigants must have a contractual or statutory basis for a claim for attorney's fees and are required, under the "Stockman Rule," to notify the other side of the intent to pursue fees. But what if the entitlement to attorney's fees did *not* exist at the outset of the dispute and only arose during the course of litigation? In this case, there was no basis for attorney's fees until the court sent the matter to non-binding arbitration, the losing party sought trial de novo, and lost...

Attempt to Settle Is Not Waiver of Right to Arbitrate

Posted on September 24, 2009
Florida decisions regarding waiver of the right to arbitrate continue to confound as the state courts are not internally consistent and use a different standard than their federal court bethren. Thus, the same situation results in different outcomes depending on which courthouse you are in, as well as which city you are in...

Fourth DCA Revisits the "Stockman Rule" on Failure to Plead Claim for Attorney's Fees

Posted on September 21, 2009
A frequent battle among litigants is whether there is a contractual or statutory basis for attorney's fees -- and then whether the prevailing party actually plead a claim for fees. In Save On Cleaners of Pembroke II Inc v. Verde Pines City Center Plaza, LLC, the parties battled over an alleged breach of a commercial lease which included an attorney fee provision for the prevailing party...

Unsigned Addendum and Post-Contract Letter Establish No "Meeting of the Minds" on Arbitration

Posted on September 18, 2009
Given the number of arbitration enforcement decisions in Florida over the last several years, we are suspicious of a decision these days which takes several pages but provides only one case as precedent. You be the judge. The Fourth District (Shahood, Warner and Hazouri) considered the arbitration clause in a residential construction contract in Toll Jupiter Limited Partnership, Toll FL GP Corp...

First District Gives Quick Lesson to Requirements of an Order Granting 57.105 Sanctions

Posted on September 17, 2009
If you are fortunate enough to win a Motion for Sanctions under Florida Statutes 57.105, the one paragraph opinion in Diane Brown v. Pan Handle Citizens Coalition et al. (Per Curiam) may be valuable guidance for proposing an order. The court held that an order granting 57...

Fourth DCA Holds Prematurely Filed 57.105 Motion is Not Valid Under F.S. 57.105(4)

Posted on September 15, 2009
The Fourth District ruled that a Motion for Sanctions under Florida Statute 57.105 must be served on the opposing side 21 days before filing, pursuant to the "safe harbor" provision, and the fact that the motion was not heard until months after will not satisfy the strictly construed statutory requirement...

When "Non-Severability" Means Something Else: Manor Care's Arbitration Agreement, Round 8

Posted on September 03, 2009
The Second DCA issued a nursing home arbitration decision inwhich it delivered the 36th Florida nursing home/arbitration decision and the eighth Florida opinion interpreting one company's form contract. Or so the opinion claims. Needless to say, it's been one we've been anxious to address...

Second DCA Holds That AAA's Recent Refusal to Accept Pre-Injury Arbitration Agreements is Not a Material Term

Posted on August 24, 2009
We are anxious to report on the recent Second DCA opinion of Manor Care v. Catherine Stiehl as PR of Estate of Halloran, but we will have to build up to that case. This (other) recent Second DCA case conveniently builds a nice bridge between the Georgia cases in our prior posts and that new Manor Care case...

Georgia Courts Address Broad vs. Limited Powers of Attorney and Argument that AAA Declines Pre-Injury Arbitration Agreements

Posted on August 21, 2009
We travel across the Florida-Georgia border to take a quick look at two nursing home arbitration decisions with differing outcomes... and to examine the argument regarding arbitration being "impossible" since, as a policy, the AAA will not hear tort cases where a pre-injury trial waiver was signed (and now disputed)...

Non-Lawyer Fails to Argue Unconscionability in Settlement Agreement at Trial, Loses Appeal Over Escalation Clause

Posted on August 18, 2009
It is common to have a time-limit demand and a settlement agreement which states that failure to pay on time results in the defendant/payor consenting to a judgment of a (higher) amount. This is known as an escalation clause. In Lawrence Reznik v...

Eleventh Circuit Holds Carnival's Seafarer's Agreement Arbitration Clause Unenforceable and Not Retroactive

Posted on August 12, 2009
A cruise ship waiter trips, spills coffee on himself, and the result is an outpouring of U.S. and international confusion, swirling the Federal Arbitration Act, Jones Act, Seaman's Wage Act, and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards into one steaming brew...

Third DCA Rejects Prevailing Party Can Claim Attorneys Fees Under Lemon Law

Posted on August 05, 2009
In a tersely phrased three page opinion, Judge Schwartz of the Third District appears to have shrugged off Fourth DCA and Eleventh Circuit precedent while apparently raking the Florida Legislature over the coals for poor writing. Meanwhile, the consumer who won his lemon law automobile claim is stuck with arbitration, trial and appellate attorney fees...

Tugboat Accident Triggers Federal Arbitration Act, McCarran-Ferguson Act, and New York Convention on the Recognition of and Enforcement of Foreign Arbitral Awards

Posted on July 28, 2009
In a decision which could find its way to the U.S. Supreme Court, the Second District held that, as an exception to an exception to a general rule (yes, you read that correctly), disputes over insurance policies involving parties in differing countries (like Lloyd's of London policies) can be arbitrated...

F.S. 57.105 Sanctions Rest on "Insufficiently Supported" Claims or Defenses, Not Necessarily Ones with a "Complete Lack of Justiciable Issues"

Posted on July 25, 2009
The First District came down hard on a plaintiff and her trial and appellate lawyers, setting forth the grounds why sanctions against the party and lawyers was warranted. In Melissa Long v. AvMed, Inc., the First DCA (Hawkes, Lewis and Thomas) found that the plaintiff rushed filing a claim in hopes that they could collect attorney's fees under their statutory claim...

You Didn't Mediate "In Good Faith" !!! (and other ills of a lengthy Report of Mediator)

Posted on July 22, 2009
One of the more painful legal cliches is the constant reference at mediation to one side mediating (or not mediating) "in good faith." Although that expression was deemed meaningless back in 1995, it still lingers in the lexicon of mediation participants...

Fourth DCA Says Single Defendant Can Require Dismissal of Entire Suit as "Condition" to Proposal for Settlement

Posted on July 20, 2009
Our starting place with Proposals for Settlement has been that the courts review them warily. A trend exists that most challenged Proposals for Settlements which go up on appeal are NOT enforced. But, more recently, we suggested there may be a counter-trend, where the intermediate appellate courts seemed to have realized that they put drafting-lawyers up to a near impossible challenge to create a bullet-proof proposal for settlement...

Does This Case Suggest That Summary Judgment Can't Be Granted on Hospital Surgery Consent Forms?

Posted on July 14, 2009
Hospital consent forms get signed every day however our ancedotal legal experience suggests that they are not routinely accepted by the courts. In fact, there is some room to suggest that defense lawyers have gotten the message and rarely press them through the use of summary judgment...

5th DCA Finds "the" and Other Exclusive Language to Create a Binding Forum Selection Clause

Posted on July 12, 2009
It seemed that forum selection clauses were not in vogue in 2008, after getting a fair amount of attention in 2007. The Fifth District revived our interest in mandatory or permissive forum selection clauses, by examining an AT&T contract in Travel Express Investments, Inc...

Fifth Circuit Finds Waiver of Arbitration (Under Federal Law) in Asbestos Case

Posted on July 09, 2009
Given that the federal standard to find waiver of arbitration is much looser than the Florida standard, this case from the Fifth Circuit is worth noting since, indeed, the plaintiff waived arbitration. In Geraldine Nicholas as Administratrix of Estate of James Nicholas v...

Once Motion to Compel is Granted, Failure to Arbitrate May Mean Defendant is Entitled to Fees As a Prevailing Party

Posted on July 01, 2009
Lawyers need to be counsel their clients carefully after a motion to compel arbitration is granted. Depending upon the statutory claims, the failure to proceed with arbitration may lead the defendant to be deemed the prevailing party, entitled to attorney's fees...

Florida Trend Magazine's 2009 Legal Elite

Posted on June 29, 2009
Florida Trend Magazine (July edition) hit the stands last week with its annual list of Legal Elite in the state of Florida broken down by areas of practice. The list represents about 2% of all Florida lawyers. Thank you for those who were kind enough to submit my name (under Appellate)...

Revisiting Our Analysis of an Illinois Case Invovling An Anti-ADR Statute

Posted on June 17, 2009
The downside to hosting a blog is that your posts are sometimes rushed or misguided. We haven't found, in three years, instances where we outrightly wished we might retract a post -- although one may be out there! -- but we did come across an old post which was both a bit testy and a bit off-track...

Eleventh Circuit Rules That Statutes Which Provide For Enforcement in Court Can Still Be Resolved in Arbitration

Posted on June 08, 2009
A clever but likely short-lived legal theory arose in the case of Elizabeth Picard et al. v. Credit Solutions, Inc. a/k/a Credit Solutions of America, Inc. If a statute indicates that any violation can be enforced in court, does this preclude arbitration? According to the Eleventh Circuit, the answer is no...

Arbitration Clause in Discrete Section of Contract Doesn't Apply to All Disputes

Posted on June 04, 2009
If a contract dispute includes an arbitration clause under a provision entitled, "Procedure for Indemnity Claims," should first party claims be arbitrated? No, according to the Second District in Raymond and Michael Tubbs v. Lisa and Richard Hudec(Fulmer, Davis, and Wallace)...

Third DCA Puts a "Blue Dot" on Proposal for Settlements

Posted on June 01, 2009
Is the Third District trying to send a message regarding Proposals for Settlement? So it appears, at least in Harris Specialty Chemicals, Inc. v. Punto Azul S.A. de C.V. et al. (Gersten, Cortinas and Salter) We typically complain when an opinion comes out without a clear recitation of what language works/doesn't work in an arbitration clause or proposal...

Third District Declines to Enforce Sanctions Because "21 day" Safe Harbor Letter Did Not Comply with 57.105(4)

Posted on May 27, 2009
We discussed a recent Fourth DCA opinion where that court set out some pointers for how to handle enforcement of a Motion for Sanctions under Florida Statute 57.105 (see Law Offices of Ferdie v. Isaacson). But what about the standards for the motion and 21-day warning letter? The Third District entered the 57...

Second DCA Continues to Blush Due to the McKibbin Decision -- Enforces Arbitration Under "Catch All" Clause in POA

Posted on May 25, 2009
In the nursing home context, plaintiffs lawyers have (rightfully) seized upon the vagueness of durable powers of attorney in order to argue that the attorney-in-fact is not authorized to sign admission agreements for the resident/ward which contain arbitration clauses...

Fourth District Explains Procedure to Collect Against Law Firm Under Fla. Stat. 57.105

Posted on May 21, 2009
Need a quick outline on what steps need to be taken to collect on a Florida Statute 57.105 "frivolous" claim motion? The Fourth DCA has a short explanation in Law Offices of Ainslee R. Ferdie, Ferdie and Lones, Chartered, et al. v. Lawrence and Lori Isaacson; Promises 10, 11 & 12 d/b/a Your Salon et al...

Anesthesiologist Fails to Revive Arbitration Due to Waiver

Posted on May 18, 2009
An anesthesiologist failed to raise arbitration in a lawsuit but then piggy-backs when another party seeks arbitration. Unfortunately, the doctor had already participated in arbitration. Oh, and, months before, he had taken the position in a different case that the arbitration clause did not apply to him...

What Do Loan Guarantors and Environmental Activists Have in Common? No Personal Jurisdiction in Florida!

Posted on May 14, 2009
The First and Fourth Districts have handed down strong opinions this month on Florida personal jurisdiction, indicating that non-Floridians cannot be haled into court here if there sole minimum contacts involve (1) guaranteeing bank loans made here, (2) infrequent emails/phone calls into Florida, (3) schools having alumni groups in Florida, and (4) correspondence school/distance learning students in Florida...

Golf Course Covenant Restriction Interpretation Sends Dispute to Arbitration

Posted on May 11, 2009
As a general rule, when an appellate court opinion contains few legal citations, that decision will likely not mean much to anyone other than the parties to the dispute. But what about when an opinion has NO CITATIONS AT ALL? Rare, yes. Precedent setting? We doubt it...

Second Hand Smoke / Flight Attendant Case Determines Pre-Judgment Interest When Proposal for Settlement is Valid

Posted on May 10, 2009
A class action case involving plaintiff flight attendants suing tobacco companies for second-hand smoke exposure has resulted in an appellate decision which sets out the period for pre-judgment interest when a plaintiff serves a valid Proposal for Settlement...

Nursing Home Sues Hospital for Equitable Subrogation in "Stuart v. Hertz" Situation

Posted on May 08, 2009
Thirty years ago, Florida courts addressed the question of "who to sue?" when a person is injured in an accident and then, while being treated, suffers further injury from medical negligence. Not much changed in that area of the law until long term care litigation arose in the 1990's...

US Supreme Court: Third Parties and Non-Parties to Arbitration Agreement Can Appeal Under FAA

Posted on May 06, 2009
For SCOTUS watchers, when Scalia and Ginsburg agree on something, its probably rock solid. But then again, when CJ Roberts and Souter both dissent... We're going to give the nod to the Scalia-authored majority in Arthur Andersen LLP v. Wayne Carlisle et al...

May 2009 Florida Bar Journal Article, "Playing Games With Arbitration Awards" Discusses Phantom "Problem"

Posted on April 27, 2009
The Florida Bar Journal has been on top of arbitration issues in the last several years. The May 2009 Journal includes a detailed article following the U.S. Supreme Court's Hall Street Associates LLC v. Mattel decision from last year. As quick background, Mattel holds that parties to an arbitration agreement cannot contract the basis for federal court review of the arbitration award -- parties are limited to the grounds set forth in the FAA, section 10...

"In Accordance With Commercial Rules of AAA" Held By Florida Court to Mean Any Arbitral Forum

Posted on April 26, 2009
A Palm Beach trial court, following the language of a specific arbitration agreement and a prior Idaho Supreme Court opinion, held that the parties were not required to arbitrate in the AAA despite the fact that the agreement said, "matter shall be settled by arbitration under the United States Federal Arbitration Act in accordance with the Commercial Arbitration Rules of the American Arbitration Association...

Fourth DCA Opines on Proposal for Settlement As Simply a Settlement Agreement

Posted on April 19, 2009
An unusual set of facts and a potential appellate issue leads to a ruling in Joseph Baratta v. Bradford Electric, Inc. and Elcon Electrical Contractors Corp. which may crowd, rather than clarify, the morass of case law surrounding Proposals for Settlement...

In Dispute Over Enforcement of Arbitration, A Claim of Unconscionability Requires An Evidentiary Hearing -- And a Lawsuit Should Be Stayed, Not Dismissed, if Sent to Arbitrators

Posted on April 16, 2009
We often knock the Fourth District, in a good natured way, for their track record of ruling against nursing homes in arbitration enforcement appeals. They did it again, but with good reason, at least from what we can see from the 2-page opinion. In Adrienne Curcio as Personal Representative of the Estate of Angelina Lanzetta v...

Debt Collection Claim by Debtor for Credit Card Co's Arbitration Win Dismissed... But Not Gone?

Posted on April 13, 2009
The Second District handed down a heady opinion on appealable orders, compulsory vs. permissive counterclaims, and how courts should view litigation actions over an arbitration award. The opinion turned in favor of the credit card company/defendant/claimant in arbitration based upon a finding that the appeal was premature...

Flesh Eating Bacteria Attacks Florida Medical Negligence Arbitration Under Chapter 766, Part II

Posted on April 11, 2009
The Third District (Ramirez, Rothenberg, and Schwartz) previously handed down a December 2008 decision in Lifemark Hospitals of Florida, Inc. d/b/a Palmetto Hospital v. Mercedes Alfonso as PR of Estate of Alexis Alfonso. In late March 2009, the court issued a clarified opinion...

Third DCA Finds Arbitration Clause on Website Not Enforceable But Merely a "Separate Collateral Document"

Posted on April 08, 2009
It is fairly common for parties to exchange a signed contract which references terms and conditions on a website or other document. Often the website or other document will contain an arbitration clause and venue term. The case of General Impact Glass & Windows, Corp...

U.S. Supreme Court Embraces Arbitration in Title VII, ADEA Case

Posted on April 07, 2009
In a 5-4 opinion, the United States Supreme Court issued a decision that union members can be required to arbitrate ADA, Title VII, and ADEA discrimination cases based upon an arbitration clause negotiated in the collective bargaining agreement by the union on behalf of the employee...

www.FloridaLawCommentary.com

Posted on April 02, 2009
Come check out our new "sister" website, FloridaLawCommentary.com. Much like this one, just with a broader (and sometimes lighter) coverage of Florida legal matters.

Second District Denies Nursing Home Arbitration, Finding Power of Attorney Was Limited to Property Rights

Posted on March 31, 2009
The Second District Court of Appeal denied arbitration in a nursing home case, finding the power-of-attorney was not authorized to sign such a document for the resident since the POA document only granted authority over property interests. Once again, as we saw in Estate of McKibbin v...

Will Florida Revive a Parent's Right to Sign Liability Waivers for Children?

Posted on March 30, 2009
An annoyed Florida legislature is slowly advancing two bills which would overturn a two-month old Florida Supreme Court decision which invalidated any liability waiver signed by parents for their children to participate in commercial recreational activities...

Arbitration Bill Amended, May Affect All Florida Contracts

Posted on March 28, 2009
If you do business in Florida and use written contracts after July 1, you may need to hire a lawyer. A Florida House Bill which began as an anti-arbitration proposal passed the Civil Justice & Courts Policy Committee this week in an amended version which barely mentions arbitration -- but now mandates revisions to every contract for goods and services in Florida...

Another Joint Proposal for Settlement Voided in Florida... Concurrence Asks for Legislative Intervention

Posted on March 25, 2009
We are sensing a connection between litigation involving Hyundai and Proposals for Settlements... perhaps just a coincidence which we will explain in a moment. What is a continuing trend, however, is that Florida courts, more likely than not, strike down Proposals for Settlements when the issue goes on appeal...

Pre-Injury Waiver Bill (HB 363 / SB 886) Supported by Orlando Theme Parks

Posted on March 21, 2009
Earlier this year, the Florida Supreme Court decision in Scott Corey Kirton et al. v. Jordan Fields et al.; Dean Dyess v. Jordan Fields; and H. Spencer Kirton v. Fields confirmed a shift in Florida law where parents were unable to sign pre-injury waivers for children to participate in commercial activities...

Additional Work in Settlement Agreement Tolled Time for Construction Lien

Posted on March 18, 2009
Given the tight economy and the amount of construction after the 2004 and 2005 hurricanes, construction attorneys in Florida are quite busy with breach of contract and lien claims. The timeliness and validity of construction liens are being hotly contested...

11th Circuit Holds "Stand Alone" Arbitration Agreement Stands When Separate Contract Was Rescinded

Posted on March 16, 2009
The Eleventh Circuit slipped out an unpublished opinion on arbitration in mid-February, but some sharp readers of the blog caught it and sent the case to us. Thanks! Save yourself the PACER fees and get the opinion via the links below. In Earl Scott v...

Council for Litigation Management Conference in Phoenix, Arizona

Posted on March 12, 2009
A short plug for the Council for Litigation Management Conference being held this week in Phoenix. CLM is a non-profit organization generally tailored to corporate general counsel, outside attorney's, and insurance professionals. This is not necessarily a "defense lawyers" conference since all of the aforementioned groups often have corporate plaintiff cases...

Your Experiences / Thoughts on Martindale Hubbell's Connected Site?

Posted on March 12, 2009
I posted earlier today about the Council on Litigation Management Conference. They are apparently partnering with Martindale Hubbell, which has put its "Connected" professional networking site into public beta. Connected can be found here. Obviously, Connected is intended to be the lawyer's version of LinkedIn...

Florida House Bill HB1135 (SB 2192) Proposes to Overhaul Florida Arbitration Code, Chapter 682

Posted on March 10, 2009
The State of Florida is making waves in the world of arbitration. In Washington D.C., Senator Mel Martinez re-introduced the Nursing Home Arbitration Fairness Act, which failed to get anywhere last session. Meanwhile, in Tallahassee, lawmakers proposed two paired bills (HB 1135 / SB 2192) which would revise the existing Florida Arbitration Code, Chapter 682, Florida Statutes...

Insurance Company Pays Insured's Fees for Disputing Location of Arbitration

Posted on March 09, 2009
A matter which began as an uninsured motorist arbitration claim turned into a lawsuit over attorney's fees because an insurance company claimed that arbitration should occur in New Hampshire, not Palm Beach, based upon where the insured "lives." The Fourth District (Polen, Warner, Hazouri) provided nominal facts in Pawtucket Insurance Company, Sandra Lucate, Jean Camille aka Jean L...

Discover Wins Battle, Loses War in FAA Section 4 Interpretation Battle Before U.S. Supreme Court

Posted on March 09, 2009
While the U.S. Supreme Court begins its session on the First Monday in October, it was not until the second Monday in March that we received their first arbitration decision. Arbitration-watchers get anxious when that occurs, as we often expect that Supreme Court will hand down a some broad, significant ruling...

Contractor-Hospital Professional Services Agreement (PSA) Does Not Bind Anesthesiologist as a "Party"

Posted on March 04, 2009

Palm Beach Bar Association CLE: Tips Once You are in Arbitration

Posted on February 22, 2009
We recently attended a continuing legal/mediator education (CLE/CME) course hosted by the Palm Beach Bar Association entitled, "Mediation and Arbitration in 2009: Finding the Hidden Gems." This course provided insights from some of the most reputable and experienced arbitrators and mediators in Palm Beach and Broward counties -- and it was a packed house...

First DCA Clarifies DPOA Power-of-Attorney Wording Necessary to Compel Arbitration

Posted on February 18, 2009
What wording is needed in a durable power of attorney (POA) document to authorize a POA to sign an arbitration clause? This has become a key question in the nursing home and ALF admission agreement cases -- indeed, nursing home lawyers are making more law on this issue than their less rabid probate and trust and estates brethren...

Facing "Bad Faith" Demand Letter, Insurance Company Can Require a Release

Posted on February 11, 2009
Many a lawyer has sought to transform a standard car accident case into a bad faith claim against the would-be defendant's insurance company. The plaintiff makes a demand for policy limits, the insurance company accepts, and then presents a general release...

Nursing Home's Agreement Causes Further Confusion in Florida

Posted on February 08, 2009
It is no mystery that businesses typically prefer arbitration – hence those clauses in so many standard-form contracts. On the other hand, consumer groups and plaintiff lawyers often want to avoid arbitration. More confusing, there are studies and journal articles which tout the fairness of arbitration while others denounce them as star chambers...

First DCA Upholds Prenuptual Agreement Which Holds "Property... forever free of claim by the other"

Posted on February 02, 2009
Florida law permits prenuptual agreements, including those which prohibit one spouse from ever taking possession of the other spouse's pre-marital property -- even if a spouse dies, rather than in the case of a divorce. There is probably more to this case than meets the eye as it appears that a minor child may be squaring off in a battle over property against his mother in Joshua Eugene Taylor as only child of Louis Eugene Taylor, deceased, versus Mary Ann Taylor...

F.S. 57.105's 21-Day "Safe Habor" Provision Applies for Motions, Not Cases, Filed after July 1, 2002

Posted on January 24, 2009
Another day, another Florida state court opinion shooting down either a 57.105 Motion for Sanctions or invalidating a Proposal for Settlement. For practitioners, defending AGAINST these motions has always been a serious matter, given the consequences...

Good Time to Arbitrate in Palm Beach County...?

Posted on January 20, 2009
Two recent releases from the 15th Judicial Circuit reveal the effects of a vortex of judicial appointments, judicial problems, and budgetary cuts which has lead to drifting judicial assignments as well as the temporary closure of entire trial divisions...

Third DCA Rejects Proposal for Settlement Sanction When Co-Defendant Pays

Posted on January 14, 2009
A split Panel on the Third District (Shepherd, Suarez and Schwartz) held that a defendant cannot collect on a valid Proposal for Settlement when the Plaintiff received payment from the co-defendant which released all parties and dismissed the case. Given the unusual ruling and the apparent strong positions of the parties, Central Motor Company d/b/a Central Hyundai et al v...

Shareholder Agreement Disputes Must Be Arbitrated Under Contract

Posted on January 07, 2009
We are a full four business days into the new year and it is the Third DCA which wins the race to issue the first arbitration decision of 2009. Unfortunately, this case is fact intensive but light on law so it may not hold much precedent. In Noah Breakstone v...

Releases Signed By Parents For Children Not Valid For Commercial Activities

Posted on January 06, 2009
The Florida Supreme Court took up the question of the enforceability of (fairly common) "pre-injury" liability waivers/general releases which are signed by parents so their children can participate in commercial activities. Finding this an issue of "great public importance," the Court held that these releases are NOT valid...

Gov Crist Appoints Palm Beach Judge to Florida Supreme Court

Posted on January 02, 2009
At least that's what the Orlando Sentinel and Palm Beach Post are reporting... Congrats to Palm Beach Circuit Court Judge LaBarga. He had been appointed to the 4th DCA in December and then was appointed to the FSC in January. We note the Sentinel ran the story (and Tweeted it) 45 minutes before the PB Post picked it up off the wire...

Flesh Eating Bacteria Attacks Florida's Medical Neglignce Arbitration Statute

Posted on December 27, 2008
In a duel involving amicus briefs from both the plaintiff bar as well as the state hospital association (the defense bar?), the Third District handed down a Christmas Eve decision which likely lead to some thoughtful post-egg nog conversations in households of Florida lawyers...

Arbitration Clauses in Home Sales Contract Do Not Seem to Include Personal Injury Claims

Posted on December 17, 2008
The Florida Supreme Court's 1999 decision in Seifert v. U.S. Home Corp. has become the standard for the elements to enforcing arbitration. Notably, the Seiferts were suing for a personal injury and the construction company sought arbitration, which was ultimately denied under the principal that the home construction contract's arbitration clause did not contemplate a subsequent personal injury which did not have a sufficient nexus to the contract for the building of the home...

You Can Rescind the Ferrari, But Not the Arbitration Clause

Posted on December 09, 2008
In the case of Michael Depaoli v. Exotic Motorcars and Jewelry, Inc., the Southern District of Florida court (Judge Kenneth A. Marra) handled a Ferrari deal gone bad. His ruling concluded that a 2000 Fourth DCA opinion was no longer good law and that a claim of rescission, which would void the contract, is for the arbitrator when there is a valid arbitration clause...

Plastic Surgery Arbitration - Motion to Disinter Body Appealed

Posted on December 05, 2008
Most civil practitioners make it through their entire careers without filing a Motion to Disinter a Body (don't bother flipping through the Rules of Civil Procedure, it's not there). In a well publicized plastic surgery death case, the First District interesting took an appeal from binding arbitration under the medical negligence statute to ascertain whether it was necessary discovery...

Last Request: Florida Trend Magazine Legal Elite 2009 Vote

Posted on December 05, 2008
If you are a Florida lawyer, please follow the link below to submit a ballot for Florida Trend Magazine's 2009 Legal Elite list. Deadline is December 10. Follow this link and enter "Christopher B. Hopkins" and "Butzel Long, P.C." for law firm. I appreciate your support!

4th DCA Clarifies Referral to Special Master/General Magistrate

Posted on December 04, 2008
Florida practitioners are likely seeing more circuit court judges referring matters to special masters/general magistrates. This judicial practice appears to be arising out of the court's limited resources. Consider it a mild form of alternative dispute resolution...

Palm Beach Bar Association CLE on "Hidden Gems" of Mediation and Arbitration

Posted on December 02, 2008
Need 3.0 hours of ethics credits? Interested to learn winning techniques from some of the best mediators in South Florida? The Palm Beach Bar Association is hosting a February 9, 2009 CLE, "Mediation and Arbitration in 2009: Finding the Hidden Gems...

Joint Proposal for Settlement Fails For Lack of Allocation / Attribution Between Recipients

Posted on November 24, 2008
Getting the format of a Proposal for Settlement/Offer of Judgment correct in Florida state courts is hard enough. A Proposal can, but likely shouldn't, include an attached release. It can resolve all claims, or not. Drafting a Proposal to more than one recipient ("joint" proposal for settlement) is even more difficult...

Contractor Lien Law (F.S. 713.21) Does Not Allow M-Compel Arbitration As Response to Discharge of Lien

Posted on November 20, 2008
In a statutory-driven area of construction law, the Fourth District (Klein, Farmer, and Taylor) once again bristle at a party's attempt to seek arbitration. Ironically, in their haste to torpedo the enforcement of arbitration in 2 pages or less, it appears they missed citing to pretty decent precedent from the Third DCA...

A "Cue" From Third DCA: Mediation Settlements Must Be Signed (Or "Make Sure You Read Rule 1.730")

Posted on November 17, 2008
We've mentioned before that verbal settlement agreements reached in the hallway are unenforceable. What about unsigned mediation settlement agreements? In a concise opinion, the 3rd DCA (Shepherd, Rothenberg, and Lagoa) advised the parties in Mastec, Inc...

AT&T Wireless / iPhone Arbitration, Class Action Waiver Upheld in Middle District of Florida

Posted on November 10, 2008
We previously commented on the AT&T Mobility Wireless Service Agreement which comes with most AT&T Wireless (formerly Cingular) plans, including the iPhone. Since its inception in mid-2007, both the original and 3G iPhone have always required AT & T service as well as arbitration and class action waivers, although the contract language has changed over time...

Third Party Beneficiaries Not Entitled to Attorney's Fees Provided in Contract

Posted on November 06, 2008
Third party beneficiaries to a contract are not entitled to recover attorney's fees under that same contract, unless the fee provision is clear, specific, and unambiguous that it includes more than just the signing parties. In Civix Sunrise, GC, LLC v...

What Can Companies Do if Florida Courts Invalidate Parental Waivers for Children's Activities?

Posted on November 03, 2008
Over the weekend, general counsel for a large Florida corporation asked me if her company should even bother to have parents sign waivers for their children who tour the company grounds or even ride bikes on the property. Lawyers around the nation might go wide-eye at the heretical suggestion of foregoing waivers for corporate events or activities, especially those involving children...

Florida Supreme Court Amends Rules on Mediator Sanctions & Discipline

Posted on October 27, 2008
The Florida Supreme Court last week amended various criminal, family, and mediator rules. Relative to mediators, the Court revised the appellate process relating to any finding of a violation of the mediator rules. According to In Re: Amendments to Florida Rules for Certified and Court-Appointed Mediators, the Chief Justice or designee has jurisdiction to review any finding of a violation (or imposition of sanctions)...

Florida Trend Legal Elite - vote

Posted on October 22, 2008
If you are a Florida lawyer, please follow the link below to submit a ballot for Florida Trend Magazine's 2009 Legal Elite list. Follow this link and enter "Christopher B. Hopkins" and "Butzel Long, P.C." for law firm. I appreciate your support!

Lawyers Have No Implied Authority to Settle ("Emergency" Exception Has Never Been Applied)

Posted on October 20, 2008
Can an attorney settle a case based upon implied or apparent authority? The general rule is "no" and the exception to that rule exists as a matter of law but has never been exercised. So "no" means no. In Calvin A. Johnson v. Velma Virginia Skarvan, the plaintiff was represented by counsel and was scheduled to attend an independent medical examination (IME) set by the defendant...

Waiver of Arbitration is Not Cured by Plaintiff Amending or Transferring Case

Posted on October 15, 2008
When I print out a new case, I often flip through to see when the case law begins to get cited. No, I'm not rushing to the end like someone who reads the last page of a book first. It's more of a law school habit. Court opinions set out the facts first and then the rule of law...

Can a Party Execute on a Debt and "Buy" an Arbitration Claim against it as a "Chose in Action"?

Posted on October 13, 2008
Sometimes cases play out like chess games, with each side having their own style and strategy. The game itself turns into a tricks and set-ups designed to distract the opponent in order to expose the queen. Whether you like the outcome or not, there was some insistent and clever lawyering in the case of David Donan v...

Tennessee Court Denies Arbitration for Nursing Home Resident (signed by 2 daughters)

Posted on October 08, 2008
The case of Nina McKey, Administratrix of Estate of Ruby Irene Brewer v. National Healthcare Corp et al., out of Tennessee, gives us yet another example of a court declining to enforce arbitration in the nursing home setting when signed by a family member who has not been designated or appointed to sign on behalf of the resident...

2008 - 2009 U.S. Supreme Court Term

Posted on October 06, 2008
Happy First Monday in October. For those who enjoy watching the U.S. Supreme Court terms, they are open for business as of today. You can keep track of the developments at the SCOTUS blog and other sites. For alternative viewpoints on the upcoming term, take a look at the articles in the LA Times or the Christian Science Monitor...

ABA Articles Find Rule 26 Disclosures and E-Discovery a "Morass"

Posted on October 05, 2008
Despite the fact that I am a member of the three federal court districts in Florida, I rarely suggest to a client to resort to federal court. Why? The expense of discovery and the needless procedures. It appears I'm not alone. According to a recent survey of nearly 4,000 lawyers, the process of filing in federal court itself has become a weapon: pleading requirements, immediate discovery demands, new e-discovery, and a "total lack of control over discovery...

You Can't Appeal An Order Compelling Arbitration In Federal Court, But You Can in Florida State Court

Posted on October 02, 2008
Florida state law and federal law differ on several aspects of compelling arbitration. One example is proving waiver of the right to arbitrate. To prove waiver under federal law requires an inconsistent act plus prejudice. Meanwhile, Florida state law has a hair trigger standard where a (poorly defined) inconsistent act alone can amount to waiver...

Lawyer Dodges 57.105 Sanctions Due to Lack of Express Finding

Posted on September 30, 2008
Like the Proposal for Settlement, Florida Statute 57.105 was enacted (and revised) in order to shorten needless litigation. Relative to 57.105, it was a sword against the sometimes-phantom, sometimes-real "frivilous" lawsuits. We rarely see appeals on this Rule and, anecdotally, we doubt many of these are even filed despite the fact that the threat is likely made on a daily basis...

Pre-Printed Contract Did Not Define "Purchaser" Nor Identify Signor

Posted on September 24, 2008
While we are obligated to acknowledge that Sadruddin Babul and Rahmat Barkat v. Golden Fuels, Inc. has contributed, in its own way, to Florida precedent, the true value of this case rests in the fact that two pro se defendants fought at the trial and appellate court and won...

Arbitration and "Choice of Law" Provisions, a Recipe for Enforcing

Posted on September 22, 2008
The Third DCA last week gave practitioners the key to enforcing arbitration in another state when the contract contains a choice of law provision. Somewhat to our surprise, some Florida lawyers wanted a malpractice claim to be heard by an arbitrator outside of Florida...

DRI Representative Trashes Arbitration in "For the Defense"

Posted on June 03, 2008
In the April 2008 of the publication, "For the Defense," the Texas representative to the Defense Research Institute claims that arbitation and ADR "meant simply ambush your adversary and steal his cattle, wife and daughters, and be done with it." This anachronistic sentence is probably meant to be more Texan than misogenistic, but it is an interesting viewpoint coming from a DRI representative...

Poorly Worded Release Can't Be Enforced on Summary Judgment

Posted on May 29, 2008
General releases, by their nature, are intended to be broad. Ironically, they can be quite dangerous in that respect. No law school that I know of teaches how to write releases nor the interplay between contracts and torts. So lawyers must either get on-the-job training or, worse still, fall into the unacceptable habit of robotically using the firm's standard form without further thought...

Fourth District Determines the Prevailing Party by the "Significant Issues Test" and Not By Contract

Posted on May 27, 2008
Can a pre-dispute contract define the "prevailing party" based upon whether someone wins 75% or more of its claim? Apparently not, according to the Fourth DCA. It is not uncommon for contracts to indicate that the prevailing party is entitled to fees and costs...

Fourth DCA Clarifies Prior Ruling on Taxing Costs and Fees After Non-Binding Arbitration

Posted on May 22, 2008
We previously reported on the case of Jeremias Atunez v. Deborah Whitfield inwhich the Fourth DCA ruled that the "old" version of Florida Stattue 44.103(6) applied and that taxable costs should be considered part of the judgment when determining whether a party who was sent to non-binding arbitration and then trial is entitled to attorney's fees...

First DCA Opinion on Proposal for Settlement Language Continues to Muddy the Waters

Posted on May 20, 2008
Proposals for Settlement are tricky little creatures. Designed to create a simple method to trigger settlement, the Proposal is mired in various procedural requirements for monetary and non-monetary terms and is a slave to both a Rule of Civil Procedure and a Florida Statute...

eBay "Live Auction" Auction House's Terms and Conditions = "Block of Impenetrable Text"

Posted on May 15, 2008
We must confess our interest in eBay, which is not only the "world's largest online auction hosting service" but also the catalist of quite a bit of litigation. Some longtime readers might recall there are lawyers as far away as Tennessee at the ready to sue the California company...

Third DCA "Sets the Stage" For Bad Faith Where Insurer Demands Hold Harmless and Subrogation Waiver

Posted on May 13, 2008
What language is "customary" in a settlement release? Apparently not hold harmless and subrogation waiver clauses, at least in a third-party insurance claim settlement according to two of three panel members of the Third District. In Olga Peraza v...

Florida Lawyer Violates Bar Rules With Paralegal Fee Sharing Contract, Claims Public Policy Defense

Posted on May 09, 2008
The Fourth District handed down an opinion where it declined to void a contract which violates Florida Bar rules because it would "discourage attorney compliance with the rule in question" and because public policy was not at stake. While the Court leapt through some mental gymnastics to keep the $87k claim alive against a lawyer who appears to have violated Bar fee-sharing rules, the Court likewise dropped clear disclaimers seeking to narrow the precedential value of the case...

Settlement Agreement Included Too Many Parties

Posted on May 07, 2008
The opinion in Patrick Flynt v. Progressive Consumers Insurance Company et al. probably should have included more facts -- if not a little "color" -- since we do not fully get the picture as to how one defendant settled and somehow convinced plaintiff and counsel to include the other defendant on the release...

Is Waiver of a Forum Selection Clause a "Permanent Waiver" For Subsequent Disputes?

Posted on May 06, 2008
We last touched upon the question of waiver back in February with the discussion of the Estate of Orlanis v. Oakwood Terrace and Regents Park case involving waiver of the right to arbitrate. The Fifth District has now issued an opinion regarding the waiver of a forum selection clause, relying upon similar case authority...

Just in Time For Summer, Parent's Agreement to Liability Waiver in Child's Camp Release is Not Enforced

Posted on May 01, 2008
Florida intermediate appellate courts, believing they are following the will of the Florida Supreme Court, have been claiming that public policy prohibits the enforcement exculpatory clauses signed by parents for their children when the other contracting party is a commercial enterprise...

4th DCA Finds Default is Not Waiver of Jury Trial

Posted on April 29, 2008
This is one of those cases where the legal holding is probably not nearly as interesting as the underlying facts of the dispute. But, it does answer some questions about the breadth of a prayer for jury trials in pleadings. In Harry Shasho v. Euro Motor Sport, Inc...

Florida Senator Submits "Nursing Home Fairness Act" to Amend FAA

Posted on April 24, 2008
Florida Senator Mel Martinez (R) co-sponsored a bipartisan bill, Fairness In Nursing Home Arbitration Act. The Act seeks to amend the Federal Arbitration Act to prevent nursing homes and ALF's from using pre-dispute arbitration clauses. It also requires that the interpretation of such clauses be determined by the court, not the arbitrator...

National Law Journal Article Oversells Gloom and Legislation on Arbitration

Posted on April 22, 2008
Is it just us or are we sensing a tide of legal-journalism pieces prophecizing the end to arbitration? Scroll down on this page and you will see our Wall Street Journal article which, by its front page stature, suggests that arbitration-concerns are either (1) something readers are interested in or (2) something the WSJ wants readers to be interested in...

Does Justice Stevens Lack Confidence in Juries in Death Penalty Cases?

Posted on April 17, 2008
On this site, we've talked about controversial topics such as abortion, juror confidentiality, exotic dancers, and even... Britney Spears. While we've yet to discuss presidential elections, gun control, the Middle East or church-state relations, surely that day is coming...

Wall Street Journal Slams Nursing Home Arbitration

Posted on April 16, 2008
In a well-researched but decidedly slanted piece, the Wall Street Journal ran a front page article on Friday, April 11 entitled, "Nursing Homes, in Bid to Cut Costs, Prod Patients to Forego Lawsuits." To see the full article, you need to log in for a trial online subscription...

Division of Marital Property Makes Divorced Wife Bound By Ex-Husband's Shareholder Agreement

Posted on April 10, 2008
While the following case is largely fact-specific, it is an interesting blending of two contracts to find the result that a non-signatory is bound by an arbitration provision. In The Steritech Group, Inc. v. Cassandra Mackenzie, David Mackenzie was party to a shareholder agreement with Steritech where he had some ownership...

Pennsylvania Depo Where Witness Says ?Fuck? 70+ Times but References the Contract Only 14 Times

Posted on April 08, 2008
Less than 1.5 of all civil cases filed in federal court result in trial. So says a 2006 federal court study cited in the case of GMAC Bank v. HTFC Corporation in a February 29, 2008 memo. While this is a Pennsylvania case, it is one that is slowly developing some media attention and it is worth pointing out the issues regarding unethical and inappropriate conduct by witnesses and lawyers which occurs in both litigation and arbitration...

FL Supreme Court Enforces "Premature" Motion for Fees on Expired Proposal for Settlement

Posted on April 03, 2008
Proposals for Settlement are tough legal creatures. Receipt of one requires a conference with the client. Timing is an issue (too early? too late?). Calculating possible exposure requires... a calculator. And enforcement requires luck. At least in the current Florida environment...

2nd DCA instructs on proper method of doctor-patient arbitration

Posted on April 01, 2008
We get a number of questions from doctors and clinics as to whether they can insert arbitration or jury waiver clauses into their patient contracts. Generally speaking, the answer is yes and it can be done in a way to avoid a lot of the typical controversies...

2008 Pacific Research Institute Study Finds Florida Has Worst Tort System

Posted on March 27, 2008
A study by a "distinguished conservative leader in public policy" found that, among all 50 states, Florida has the worst tort system. The Pacific Research Institute's lengthy 2008 U.S. Tort Liability Index even has a foreward by the former governor, Jeb Bush...

Nonsensical and Poorly Worded Fee Provision Not Enforced

Posted on March 25, 2008
General guidelines of writing attorney fee provisions, like arbitration clauses, typically start with the concept of clear and broad language. This recent Fifth DCA opinion, while involving an attorney fee provision, violates both. It is, however, instructive for those involved in drafting arbitration clauses...

6th Circuit Finds No Qui Tam Standing Under Medicare Secondary Payer Act

Posted on March 20, 2008
We cover arbitration, mediation, exculpation, and various other ADR issues including settlement in our blog. Sometimes we travel a bit outside of the state of Florida and other times we meander just outside the walls of ADR issues. This case is a bit of both, seeing that it involves the Medicare Secondary Payer Act in a non-Florida case however it does involve Florida lawyers, health care providers, and a legal issue which, the plaintiff had succeeded, might have significantly altered how lawyers pursue medical payment claims and settlements...

Sixth Circuit Questions "Final" v. Non-Appealable and How "Neutral" is Your Arbitrator?

Posted on March 18, 2008
We pick up this Sixth Circuit federal court case since it confronts two issues for which there is nominal Florida precedent, despite the fact that these arbitration issues repeatedly occur in our fair state -- a state which lacks for little except presidential primary democrat delegates...

Meaning of "Service" Versus "Receipt" Under Chapter 766 Arbitration Provision

Posted on March 13, 2008
The case of Columbia/JFK Medical Center Limited, etc. v. Sam and Matilda Sangounchitte will likely be an important case for medical negligence lawyers interested in the ongoing tug-of-war between plaintiffs' lawyers and hospital lawyers over whether hospitals can be blamed for (nominally-insured) physicians under different vicarious-liability type claims...

How to Escape Judgment on Chapter 44 Non-Binding Arbitration

Posted on March 12, 2008
We've written before about how lawyers and courts are struggling with the 20-day rule to seek a trial de novo once the arbitrator issues its award in Chapter 44 non-binding arbitration (see here and here). Enter this interesting two-paragraph decision which shows that a Motion for Relief From Judgment (Rule 1...

Accord and Satisfaction: No Signature, No Intent, But Compelled

Posted on March 11, 2008
We sometimes question whether courts truly view arbitration clauses in the "preferred" status that the law provides. Given the number of ways that a person can escape arbitration -- explored and emphasized in nursing home cases -- we question whether the "general rule" of public-policy-favors-arbitration is going to be consummed by the exceptions, a la legal concepts like the Economic Loss Rule...

Mattel, Inc. Not Toying Around at the U.S. Supreme Court

Posted on March 06, 2008
We pick up a curious Ninth Circuit case which is pending before the U.S. Supreme Court because, of course, it involves an issue of arbitration. Moreover, while we are not SCOTUS-watchers like some people, it seems unusual that the High Court took up an unpublished federal court case...

5th Circuit Upholds Nursing Home Admission on 3rd Party Beneficiary Theory and "Concessions"

Posted on March 05, 2008
Up until 1981, the Fifth Circuit had been the federal circuit for Florida. Given that it governs our sister states and still has precedential value, we cast our gaze to their docket to find one of our favorite gems: a nursing home arbitration dispute...

Third DCA Addresses Chapter 766 Medical Malpractice Act Arbitration Loophole

Posted on March 04, 2008
We've been of the opinion for some time that Florida's Medical Negligence Act (Chapter 766) has been in need of some fine-tuning beyond the 2003 amendments. One of the potholes in the med mal road has been that it appears there are two alternative options for Chapter 766 arbitration: arbitration with caps and just plain arbitration...

Further Analysis of 4th DCA's Slusser Decision

Posted on February 28, 2008
We were intrigued by the February 20 Fourth DCA decision in Slusser v. Life Care Centers of America et al. and the court's holding that the "police power" argument failed when the plaintiff argued it overcame the right to arbitration. So, braving State-wide power outages, non-lawyer sharks, and massive storms, we made that punishing trip two blocks to get the briefs...

PA Court Orders Lanham Act/False Advertising Claim to Arbitration

Posted on February 27, 2008
We travel north of the Mason-Dixon Line to Pennsylvania for this dispute over a credit resolution company's arbitration clause in their consumer debt settlement contract with the plaintiff in Ned J. Oyler v. Financial Independence and Resource Education (FIRE)...

Does the Fourth DCA's New Slusser Case Help Define Digati and Blankfeld?

Posted on February 26, 2008
The Fourth DCA certainly has been fodder for any number of posts on this website. In Romano v. Manor Care, the court decided there was an unprecedented "sliding scale" unconscionability analysis and then tried to suggest their was a strong Florida precedent for that approach...

Tort Claims Continue to Be Arbitrable Despite Complaint Not Referencing Contract

Posted on February 21, 2008
Frequently a plaintiff will bring a tort claim and the defendant will respond seeking arbitration and, for the first time, will interject a contract between the parties into the pleadings. The plaintiff often responds, like in Seifert v. U.S. Homes, that the tort claim has no "significant relationship" or "nexus" to the contract...

Forum Selection Clause Loses to Lien Foreclosure

Posted on February 20, 2008
The Fifth DCA recently addresses the question of the enforceability of a contractual forum selection clause when there is a companion case which must be brought in a different venue. In John Mason v. Homes By Whitaker, Inc., the parties had a contract (with a mandatory forum selection clause) to build a house in Clay County...

Woebse v. Health Care and Lopez v. Ernie Haire Ford: Has the Second DCA Changed Its Tune?

Posted on February 15, 2008
February 6 must have been "arbitration day" at the Second DCA with the release of Marilyn Woebse as Personal Representative for the Estate of David Kramer v. Health Care and Retirement Corporation of America and Morris Lopez et al. v. Ernie Haire Ford, Inc...

Boca Raton Nursing Home Wins Stage III Ulcer Arbitration

Posted on February 13, 2008
A Palm Beach County skilled nursing facility won an arbitrated dispute over whether it violated a Resident's Nursing Home Rights when the Resident, admitted with vascular problems and multiple reddened areas, developed bilateral Stage III decubitus ulcers...

Workers Compensation Claim Release of "Affiliate" Entities Was Not Ambiguous

Posted on February 12, 2008
Watch the wording of tort and workers compensation claim releases. At least that's the message in Robert and Joyce Churchville v. GACS Incorporated, Ryder Automotive Operations, et al. A man worked for a company (Allied Systems) which, over the years, merged several times...

Will the Florida Supreme Court Take Up A Conflict Over Waiver of Arbitration?

Posted on February 08, 2008
We certainly hope so. Previously, we reported on the case of Estate of Orlanis v. Oakwood Terrace and Regents Park where a Third DCA panel found that there was waiver of the right to arbitration due to the fact that the Defendants sent written discovery before moving to compel arbitration...

Christopher Hopkins and Frank Petosa At Southern Trial Lawyers Conference Discuss Nursing Home Arbitration and the Impact of Who Signs the Agreement

Posted on February 06, 2008
Two West Palm Beach lawyers battled out the plaintiff and defense perspectives on nursing home arbitration clauses at the recent Southern Trial Lawyers Association conference last week. Christopher Hopkins, founder of this site and partner at Cole, Scott & Kissane addressed the group along with Frank Petosa of Petosa and Associates...

Does a Lawyer Have Client Authority to Serve a Proposal of Settlement?

Posted on January 31, 2008
The question of settlement is certainly without our focus of arbitration and mediation. We note this interesting Fourth DCA case involving questions of a lawyer's authority to settle and/or serve a Proposal for Settlement. In Julio and Alejandra Ponce v...

Florida Car Dealer's Free-Standing Arbitration Agreement Violates Magnuson-Moss Warranty Act

Posted on January 30, 2008
A man and a woman purchase and finance a 2001 Ford Expedition from Maroone Honda in South Florida. The truck allegedly did not work properly and a lawsuit under the Magnuson-Moss Warranty Act was filed. The Defendants (car dealership and financing people) won their motion to compel arbitration...

Minor Not Demonstrate Sufficient "Maturity" For Waiver of Parental Notification for Abortion

Posted on January 28, 2008
As frequent readers of this blog are aware, "procedural unconscionability" is the first prong of analysis for the enforcement of arbitration which involves factors such as the circumstances surrounding the execution of a contract. It also includes questions of the signor's capacity to contract...

Nursing Home Arbitration Fails Due to Power of Attorney Language and Lack of Authority of Signor

Posted on January 24, 2008
As we've mentioned before, it is sometimes surprising that arbitration is "favored" despite the number of pitfalls which exist in compelling it. A nursing home chain, Alterra, is certainly aware of the morass of arbitration enforcement given its string of Florida opinions in the last 12-18 months...

Middle District of Florida Court Upholds Comcast's Arbitration Clause, Class Action Waiver, and One-Year Period to Bring Claim

Posted on January 22, 2008
A federal district court in Jacksonville handed down an order enforcing the arbitration notice between a cable company and its subscribers in Brian Sanders et al. v. Comcast Cable Holdings, LLC et al. Given that we have not seen much Florida-based case law on "billing inserts," class action waivers, and contractual terms which shorten the statute of limitation, this case may be a big decision for 2008...

Alabama Supreme Court Rules on Waiver of Arbitration -- Follows Federal Procedure, Not Florida's

Posted on January 18, 2008
We've mentioned before that, in Florida state courts, there exists a different standard to prove waiver of arbitration than if you are in federal court. Essentially, Florida courts require a vague proof of waiver only whereas in federal court one must prove waiver and substantial prejudice...

Motion to Stay Litigation Pending Outcome of Arbitration

Posted on January 16, 2008
Tangential to the motion to compel arbitration is the motion to stay litigation pending the outcome of arbitration. We mentioned this back in 2006 in a Florida federal court order in Hudson Global Resource Management v. Beck et al. The same court has re-visited the issue with a November 2007 order in Gerd Petrik v...

Arguments That Arbitrator "Exceeded Authority" Rarely Work

Posted on January 14, 2008
The general rule is that if you take your claim to arbitration, you had best be prepared to accept the results. We've mentioned the unlikely nature of vacating arbitration awards before -- even if a trial court could not have done what the arbitrator did...

Lawyer Sued for Malpractice-type Theories Can't Invoke the Arbitration Clause He Wrote

Posted on January 11, 2008
The Fourth DCA denied arbitration in a case because the parties to the suit had not agreed to arbitrate. This was not, however, the typical scenarios such as questioning the breadth of the agreement nor whether the parties were signatories. In David Hart, P...

Carnival Cruise Ticket's "Forum Selection Clause" Is (again) Deemed Valid by 3rd DCA

Posted on January 09, 2008
Clever lawyers from West Palm Beach may have breathed the last clever argument in the war waged by injured passengers seeking to avoid cruise line forum selection clauses. But they did not win and the Southern District will have another cruise injury case...

Verdict + Costs = Judgment, When Determining Entitlement to Attorney Fees in Non-Binding Arbitration

Posted on January 07, 2008
Many of you will recall that section 44.103(6) was revised by the Florida Legislature so that, as of October 1, 2007, the loser of non-binding arbitration would be exposed to the winner's attorney's fees and costs if the judgment was 25% more than the arbitration award...

Fourth DCA Holds A Stay is NOT Required While A Motion to Compel Arbitration is on Appeal

Posted on January 04, 2008
Sometimes technicalities can override common sense. Such may be the case in Open MRI of Okeechobee, LLC, Andrew S. Galant, Andrew T. Walker and Henry R. Zayas v. Peter Aldana, Iqbal Ahmed, and John Chang. We do not know the nature of the dispute but we do know the defendants lost a motion to compel arbitration and appealed...

First DCA Rules on Waiver of Arbitration in Collective Bargaining Case

Posted on January 02, 2008
The question of waiver of arbitration continues to be a hot topic and, arguably, this case will not help clear the differences of opinion among the various district courts of appeal. The case of City of Jacksonville, Jacksonville Sheriff's Office v...

Five Ways to Bind a Non-Signatory -- But Not The CEO of a Party

Posted on December 20, 2007
The Fourth District handed down a denial of arbitration in Mark J. Johnson v. Carl Pires, Everett Pires, Marc Miller and All Top Granite, Inc. This case is interesting as the court held that the CEO (Johnson) who signed the contract on behalf of his company was not individually bound to arbitrate...

4th DCA Agains Re-Visits Broad Arbitration Language and the Arbitrability of Statutory Claims

Posted on December 18, 2007
More and more, Florida courts are consistently ruling on the breadth of arbitration clauses based upon their wording. We've reported on this quite a bit, most recently another 4th DCA case, Florida Environmental Services, Inc. v. Michael and Cher Rentoumis, where the court discussed "all disputes," "arising under, and "arising out of and relating to...

Can A State Prohibit a Nursing Home From Using an Arbitration Clause?

Posted on December 13, 2007
In early 2003, at the apex of nursing home litigation and the emergence of long term care arbitration provisions, the Center for Medicare and Medical Services fired a warning shot at the nursing home industry with this memo, suggesting there were going to be repercussions for using arbitration clauses in long term care admission agreements...

FloridaArbitrationLaw.Com Founder to Speak At 2008 Southern Trial Lawyers Association Conference

Posted on December 11, 2007
Christopher Hopkins, founder of FAL.com and partner at Cole, Scott & Kissane, will speak on the topic of arbitration enforcement sharing the dias with Frank Petosa of Petosa & Associates at the January 30 - February 3, 2008 Southern Trial Lawyers Conference...

Who Decides Timeliness of Request for Arbitration: Court or Arbitrator?

Posted on December 05, 2007
We've been down this road before and it seems that the Florida state courts are beginning to align, with one possible wrinkle. In a very short Fourth DCA opinion in Thierry Albert Thenet v. Ken Jenne and Broward Sheriff's Office, the court held that timeliness (even if labeled a condition precedent) is for arbitrator...

Entitlement to Attorney's Fees Under Contract or Proposal for Settlement is Not Barred By Losing At Non-Binding Arbitration Under F.S. 44.103(6)

Posted on December 03, 2007
There is nothing worse than winning in non-binding arbitration and then losing in trial (when it counts). Lawyers around the state sometimes voice displeasure at the trial court's ability to force cases to non-binding arbitration before trial. The inherent risk is "giving away" your strategy -- or at least allowing your opponent to get accustomed to your style and methods...

Having Flu and Not Initialing a Page Does Not Stop Enforcement of Arbitration -- No Obligation to Read Terms

Posted on November 29, 2007
A 69-year old nursing home resident sought to deny enforcement of an arbitration clause in the admission agreement because she didn't initial page 5, she signed on the wrong line at the end of the contract, and because she had the flu. She also complained that the Facility did not explain the contract to her...

First DCA Explains How to Avoid Mandatory Forum Selection Clauses

Posted on November 27, 2007
We've reported on five forum selection cases in the last four months. Typically, the dispute is over the whether the language is "mandatory" versus merely permissive. But what about other grounds to avoid a forum selection clause? Back in August 2007, in Land O'Sun Management v...

Florida Supreme Court Declines Jurisdiction to Resolve Possible 1st and 4th DCA Conflict Regarding Signor's Authority

Posted on November 21, 2007
There are certainly any number of brewing conflicts in Florida arbitration law including standards for waiver; authority of signor; existence of and standards for a public policy test; whether a sliding scale analysis is appropriate to determine unconscionability; whether enforcement is for arbitrator to decide; and whether a health care surrogate or proxy has authority to bind a patient to arbitration...