Other Jurisdictions

You Don’t Always Get What You Want

Florida’s First District Court of Appeal recently held a venue clause was unenforceable where the public adjuster’s contract containing the clause exceeded Florida’s statutory 10% fee cap by charging the insured a fee for separate but related services.  Monarch Claims Consultants, Inc. v. Cliff & Jane Fleming, Case Number 1D22-601 (Fla. 1st DCA September 6, 2023). The Flemings’ home was destroyed by Hurricane Michael.  Monarch contracted with the Flemings to act as their public adjuster.  Monarch’s contract required the Flemings, for an additional 10% fee, to utilize Monarch as their appraiser, if the claim went to appraisal. After doing nothing on the claim, the Flemings discharged Monarch and hired an attorney.  After the Flemings’ settled their claim, Monarch demanded payment of 10% of the gross settlement. The Flemings sued Monarch seeking a declaration that Monarch’s fee agreement was void because it violated Fla. Stat. § 626.854(10), which caps a public adjuster’s fee to 10% of the insured’s recovery during a declared emergency.  Citing the contract’s venue clause, Monarch moved to dismiss.  Agreeing with the Flemings, the trial court found the contract void, and refused to enforce the venue provision. On appeal, Monarch argued that the 10% adjuster’s fee complied with the statute and, because it was not seeking payment of 10% appraiser’s fee, the contract, and its venue clause, was enforceable.  Monarch also argued that the contract was valid because adjusting a claim and appraising a loss were different and, thus, two separate 10% fees were allowed. The Flemings argued that the statute precludes public adjusters from agreeing to or accepting compensation or anything of value in excess of 10% of the insured’s insurance recovery.  The Flemings also argued in requiring the fact that Monarch was not seeking payment of the 10% appraisal fee was irrelevant because in requiring that they hire Monarch as their appraiser, Monarch received a thing of value, a promise to do something in the future, which, when added to the contract’s 10% fee, exceeded the statutory limit. Finding that “Public adjusters violate section 626.854(10)(b) when they ‘agree to’ be compensated with any ‘thing of value’ in excess of the [statutory] fee cap.”  Slip at 9.  And that the “Flemings’ promise to appoint Monarch as their appraiser, on its own, is a ‘thing of value’ that exceeds the ten percent cap.”  Slip at 9. Applying these findings to the case at hand, the Monarch Court affirmed, holding that because the contract it was based on was void, the contract’s venue clause was unenforceable. The Take Away.  A venue clause in a void contract is unenforceable in Florida. Thanks to Chip George for his contribution to this article.  Should you have any questions, contact Chip George.Read More

Failure To Facilitate A Meeting Of The Minds On A Pretrial Agreement Is Perilous

In Jones v. Blue Ridge Mfg., LLC, 4D21-1799 (Fla. 4th DCA Dec. 14, 2022), the parties stipulated that the death was the result of decedent’s head’s “direct or indirect contact” with defendant’s vehicle. There was evidence that decedent suffered a basal skull fracture caused by decedent’s head’s “direct or indirect contact” with defendant’s truck. There was also evidence that the basal skull fracture was the result of inertial forces (the fatal injury believed to have been suffered by race car driver Dale Earnhardt) not caused by decedent’s head’s “direct or indirect contact” with defendant’s truck.

The defendant sought to withdraw the stipulation pretrial, arguing that the meaning of “direct or indirect contact” was not clear. The court declined to do so but did allow the defendant to argue its interpretation of the stipulation and put on evidence supporting that interpretation.

On appeal, the court discussed the purpose of, legal analysis applied to, pretrial stipulations. The court recognized that stipulations were valuable to a “well-run and fair trial,” warned that “the failure to facilitate a meeting of the minds on a pretrial agreement is perilous,” and cautioned that “stipulations be clear, positive, definitive, and unambiguous.”

Because it could “fairly be read to mean that the parties intended the ‘direct or indirect’ contact issues to be determined by the jury,” the appellate court found the stipulation ambiguous. Applying this finding, the Court held that the trial court did not abuse its discretion in allowing the jury to determine the meaning of the stipulation or in allowing extrinsic evidence regarding the meaning of the stipulation.

The takeaway: Be aware of the nuances presented by the evidence, and do not let your familiarity with the evidence result in a less than clear stipulation.

Thanks to Charles “Chip” George for this article. Please contact Chip with any questions.

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Another Twist In Florida’s New Summary Judgement Law

Florida’s Supreme Court recently adopted the federal summary judgment standard. Since then, lawyers and the trial and appellate courts have grappled with the twists and turns every major rule change presents.

Prior to adoption of the new rule, summary judgment orders were reviewed de novo, and the trial court’s reasoning was irrelevant on appellate review.

Recently, Florida’s Fourth District Court of Appeal, in Mech v. Brazilian Waxing by Sisters, Inc., Case Number 4D22-145, 2022 Fla. App. LEXIS 7444, 2022 WL 16626039 (Fla. 4th DCA November 2, 2022), found that the standard of review under the new summary judgment rule was de novo; that the new rule required that the trial court state on the record its reasoning in granting or denying summary judgment; and, that the trial court’s failure to state its reasoning on the record required reversal.

While it is now clear that the trial court’s failure to state its reasoning on the record when ruling on summary judgment is per se reversible error, the standard of review to be applied is unclear. If the standard of review is de novo, the appellate court need not consider the trial court’s reasoning, and there is no need to know its reasoning. If the standard of review is abuse of discretion, the trial court’s reasoning is important to, and an intricate part of, appellate review. The same is true if the summary judgment order is reviewed under the substantial competent evidence rule.

As often happens, resolution of one issue has exposed another. In holding that the trial court’s failure to state its reasoning on the record when ruling on summary judgment is per se reversible error, the Fourth District has cast uncertainty upon the standard of review to be applied in appeals from summary judgment orders.

One thing is certain; the prevailing party on summary judgment must make sure that the court announces, on the record, its reasoning. Failure to do so is per se reversible error. Thanks to Charles “Chip” George for this post. Please contact Chip with any questions.Read More

Raise It or Waive It

Effective immediately, “the following sentence is added to rules 1.530(a) and 12.530(a): To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.” In Re: Amendments to Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530, 47 Fla. L. Weekly S 204, 2022 Fla. LEXIS 1294 *, 2022 WL 3650789 (Fla. SC22-756 August 25, 2022).

Prior to this amendment, some appellate courts in Florida held that to preserve appellate review of the sufficiency of a trial court’s findings in a final order or judgment, an appellant must challenge those findings by motion for rehearing. Others held that a motion for rehearing was unnecessary. With the recent amendment to Florida Rule of Civil Procedure 1.530, litigants statewide must now take an extra step in the trial court to preserve for appellate review challenges to the sufficiency of the trial court’s findings in final orders and judgments; they must timely challenge those findings by motion for rehearing.

Be careful: noncompliance with new Rule 1.530(a) has serious consequences. In the absence of a timely filed motion for rehearing, appellate challenges to a trial court’s findings in a final order or judgment will likely be deemed abandoned.

Thanks to Charles “Chip” George for his contribution to this post. Please reach out to Chip with any questions.Read More

The Court May View, But Not Weigh, the Evidence on Summary Judgment

In Garcia v. Security First Ins. Co., 5D21-1456, 2022 Fla. App. LEXIS 6197, 2022 WL 4111171 (Fla. 5th DCA September 9, 2022) the insured homeowner made a claim for water damage after a roof leak claim. At deposition, the insured admitted to a prior roof leak and later produced pictures and a damage report. The insurer moved for summary judgment arguing that the insured’s concealment of the prior damage and false statement regarding the pre-loss condition of the home forfeited coverage.

The trial court, finding that it was entitled to weigh the credibility and the evidence under Florida’s new summary judgment rule (which mirrors the federal rule), granted summary judgment. On appeal, Florida’s Fifth District Court of Appeal reversed, holding that: “Credibility determinations and weighing the evidence ‘are jury functions, not those of a judge,’ when ruling on a motion for summary judgment.”

While this sounds basic, there has been much debate over the reach of Florida’s new summary judgment rule – some argue that the court may weigh the evidence, others argue that it may not. Garcia is the first appellate case decision dealing with the issue and every trial court in Florida must follow Garcia until the appellate court sitting in their District rules differently. Claims professionals should keep Garcia in mind when seeking summary judgment in Florida.

Thanks to Charles “Chip” George for his contribution to this post. Please contact Chip with any questions.Read More

Timing is Everything – Late Notice and the Presumption of Prejudice in Florida

In Perez v. Citizens Property Insurance, 2022 Fla. App. LEXIS 4583, 2022 WL 2444681, 47 Fla. L. Weekly D 1451 (Fla. 3d DCA July 6, 2022) Florida’s Third District Court of Appeal reaffirmed that late notice of a claim is presumptively prejudicial to the insurer and absent evidence refuting that presumption, summary judgment for the carrier is proper.

In September of 2017, Miami, Florida was battered by Hurricane Irma. Two years later, Ms. Perez notified her windstorm carrier, Citizens Insurance, that her home had been damaged.

Ms. Perez claimed to have done mitigation and performed repairs but had no records. After she failed to provide repair records, and a sworn proof of loss, Citizens denied the claim.

Ms. Perez sued, and Citizens moved for summary judgment arguing that its ability to inspect the damage and determine its cause had been fatally prejudiced by the late notice. In opposition, Ms. Perez filed an expert affidavit stating that after inspecting the home, it was the expert’s opinion that Hurricane Irma had caused damage to Ms. Perez’ home.

The trial court found, and the appellate court agreed, that it was impossible for the expert, with no contemporaneous documentation, photos, investigation, etc., and based solely on an inspection conducted three years after the storm and after the damage had been repaired, to opine that Hurricane Irma caused damage to Ms. Perez’ home. The trial court also found, and the appellate court agreed, that an expert’s conclusory affidavit will not overcome the presumptive prejudice caused by late notice.

In the past, Florida has favored insureds when deciding motions for summary judgments based on late notice. Whether this decision indicates a shift in thinking or is merely based on a good set of facts for the insurer remains to be seen.

Thanks to Charles “Chip” George for his contribution to this post. Please contact Chip with any questions.

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Seventh Circuit Affirms Summary Judgment For Employer And Benefit Plan Under ERISA

In Canter v. AT&T Umbrella Benefit Plan, plaintiff, a premises technician, applied for and received short-term disability benefits under his employer’s umbrella benefit plan. He provided the plan administrator the requisite “objective medical evidence” in support of his disability claim after he experienced migraines and dizziness, making him unable to claim tall ladders.  The plan administrator granted benefits for about five months upon receipt of multiple unremarkable test results and medical reports of mixed improvement in plaintiff’s condition.

When one of plaintiff’s medical providers reported that plaintiff’s “persistent dizziness has resolved” but he still experienced “dizziness with exertion,” the plan administrator referred plaintiff’s case to an independent medical reviewer.  That reviewer – and two subsequent ones on internal appeal – concluded that plaintiff did not provide the requisite evidence to continue his claim, so the administrator denied the claim, and later rejected the appeal.

Plaintiff was ordered back to work early the following year, but was sent home because he did not have a doctor’s note releasing him for work.  His employer granted him unpaid time off as an accommodation, but at the end of that period, plaintiff was unluckily removed from payroll because there were no openings that accommodated his work restrictions.

Plaintiff brought this ERISA claim for wrongful termination of benefits.  The district court granted defendant employer and plan summary judgment because the denial was not arbitrary and capricious in light of the many normal tests and despite some self-reported symptoms and the lack of communication between plaintiff’s treating providers and the independent medical reviewers.

The Seventh Circuit affirmed, holding that while the plan administrator’s denial letter was not perfect – and that “improvement is almost always possible in the real world,” namely, by pointing out that no doctor in the weeks before the denial indicated that plaintiff should continue to refrain from working – it contained enough information to demonstrate the reasonableness of a denial and allow plaintiff an opportunity for a full and fair review.

Thanks to Abed Bhuyan for his contribution to this article.  Should you have any questions, please contact Heather Aquino.

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Clash Of The Titans: Legal Fight Brewing Over Elon Musk’s Decision To Terminate The Twitter Purchase Agreement

A high-profile legal fight has begun over the recent decision by Elon Musk to back out of purchasing Twitter. On July 8, 2022, Musk advised Twitter of his plans to terminate their purchase agreement, claiming that Twitter was in “breach of multiple provisions” of the original $44 billion agreement. Musk claimed that Twitter failed to provide adequate data regarding the number of fake accounts and bots, and how the number of daily users is calculated given the quantity of spam accounts on the social media platform. Musk had previously stated that the deal would not move forward without this data since Twitter’s revenue is generated primarily by ad sales. Musk also claimed that Twitter fired key employees and instituted a general hiring freeze without Musk’s approval.

Twitter denied Musk’s allegations, claiming that it has complied with its legal obligations under the agreement and that Musk’s attempt to terminate the agreement is invalid and constitutes a breach of his obligations under the agreement. On July 12, 2022, Twitter filed suit against Musk in the Delaware Chancery Court, the preeminent court in the nation for corporate takeover and merger disputes.

In its lawsuit, Twitter seeks to force Musk to follow through with the deal. The lawsuit is unusual in that it contains memes, tweets and emoji, and claims that Musk has “knowingly, intentionally, willfully, and materially breached the Agreement.” The suit also criticizes Musk’s strategy in backing out of the deal as a “model of bad faith” and that he repeatedly disparaged the company even after signing the purchase agreement.

Several reports claim that Twitter’s CEO Parag Agrawal is “willing to go to war” to make sure the agreement with Musk is upheld. Unless a settlement is reached, the parties will likely engage in contentious litigation to resolve whether the agreement should move forward or Twitter is entitled to damages, including a $1 billion termination fee in the agreement. How the Delaware court interprets the actions and intentions of Twitter and Musk, coupled with the language of the agreement, will determine the outcome of this high stakes dispute, and could impact large merger agreements moving forward. Time will tell how this legal fight will play out.

Thank you to Michelle Palagi for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Alec Baldwin Sued For Wrongful Death Of Cinematographer

In a well-publicized incident which took place in October 2021, cinematographer Halyna Hutchins was shot and killed by actor Alec Baldwin on the set of the movie “Rust.” On February 15, 2022, the Hutchins family filed a wrongful death lawsuit in New Mexico’s 1^st Judicial District Court against the movie’s producers and certain cast and crew members, including Alec Baldwin.

At the time of the accident, Baldwin and Hutchins were rehearsing a “line up” shoot-out scene in an old, abandoned church. Baldwin was seated approximately four feet away from Hutchins when he pointed a revolver at her, causing it to discharge. According to the Complaint, “the sole purpose of a line up for this scene was to confirm the positioning, frame and focus of the cameras for a close-up shot of Baldwins’ hand and the revolver he was holding. It is alleged that “Baldwin’s possession of a real revolver, let alone a revolver loaded with any ammunition at all, was unnecessary to achieve this purpose.” The Complaint alleges that Baldwin refused training for the “cross-draw” maneuver he was performing when the weapon discharged.

Though Baldwin fired the bullet that killed Hutchins, Plaintiffs assert claims for recklessness and negligence against numerous others involved in the production. More specifically, the defendants were allegedly aware of several firearm safety issues and complaints on the set, took cost cutting measures and failed to remedy the situation or take adequate precautions for firearm safety.

This high-profile lawsuit will include a complex negligence analysis involving the culpability of numerous parties, including whether Ms. Hutchins should have some responsibility for the accident which caused her death. Several other lawsuits have been filed by cast members and it is unlikely that meaningful discovery will take place while a decision regarding potential criminal charges is pending. WCM will monitor the litigation and report on any significant developments.

Thank you to Alexandra Deplas for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Florida Appellate Court Approves Of Insurer’s Right-to-Repair In Lieu Of Payment Clause

People’s Trust Insurance Company takes an unorthodox approach to homeowner’s insurance, “In return for a premium discount, the policy contain[s] a Preferred Contractor Endorsement” which gives “People’s Trust a right-to-repair option, i.e., after inspecting a covered loss, People’s Trust ha[s] the option to select its own contractor [and] to repair the damages to the insureds’ property in lieu of issuing a loss payment that would otherwise be due under the policy.” See, People’s Trust Insurance Co. v Tosar, 46 Fla. L. Weekly D 2651, 2021 Fla. App. LEXIS 15605, 2021 WL 5912737 (Fla. 3d DCA December 15, 2021).

After their home was damaged by Hurricane Irma, the insureds’, Mr. & Ms. Tosar made a claim. Peoples Trust did not dispute coverage and, after timely inspection, elected to repair all covered damage exceeding the policy’s deductible. The insureds challenged Peoples Choice’s estimate, and Peoples Trust triggered the policy’s appraisal clause. Instead of proceeding with the appraisal, the insureds sued.

Peoples Trust asked for, and the court compelled appraisal. The appraisal award exceeded Peoples Trust’s initial estimate and, pursuant to its policy, Peoples Trust asked the court to require the insureds to authorize it to make the required repairs. After the court declined to do so, the insureds asked the court to order Peoples Trust to pay them the appraisal award. The trial court ordered Peoples Trust to pay the appraisal amount less the deductible, and Peoples Trust appealed.

The appellate court found that the policy was not ambiguous and that that appraisal award simply established the scope of the repairs to be performed “in lieu of a loss payment.” The appellate court found the policy’s “right-to-repair option” valid and enforceable, and ordered the trial court to enforce the policy as written.

Florida is in the midst of an insurance crisis. Homeowners’ insurance generally, and windstorm coverage in particular, is hard to find and expensive. In reaching its decision, the appellate court signaled that Florida’s courts will enforce creative policies, that lower insurance costs, so long as the policy unambiguously explains the nature and scope of the insurance provided.

Thanks to Charles “Chip” George for this post. Please contact Chip with any questions.Read More