Saturday, August 11, 2012

Insurance, restraint of trade, restraint of reproductive rights and fresh rosemary bread with mango chive and cucumber chutney

Insurance -- Condominiums -- Assignment of claims -- Neither Declaration of Condominium nor Articles of Incorporation prohibited Association from assigning potential insurance claims for hurricane damage to former unit owners -- Trial court erred in dismissing former unit owners' claims against insurer -- Trial court did not abuse discretion in certifying unit owners as a classRAMON CASTELLANOS, ET AL., Appellants, vs. CITIZENS PROPERTY INSURANCE CORPORATION, ET AL., Appellees. 3rd District.

Workers' compensation -- Compensable accidents -- Fall on employer's premises -- Where it was undisputed that claimant was actively engaged in work-related activity at time of accident, and there were no competing causes of accidental injury, claimant's work activity was de facto the major cause -- Judge of compensation claims erred in finding that claimant failed to establish that work performed within her employment caused her injuryVALERIE WALKER, Appellant, v. BROADVIEW ASSISTED LIVING and CHARTIS CLAIMS, INC., Appellees. 1st District.

Criminal Acts: SANDUSKY'S HOMEOWNERS POLICY DOESN'T COVER SEX-ABUSE DEFENSE COSTS, INSURER SAYS, State Farm v. Sandusky, 22 No. 43 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage August 3, 2012 State Farm has asked a federal court to rule that it has no obligation under Jerry Sandusky's homeowners policy to cover defense costs in criminal and civil sex abuse suits against the former Penn State assistant football coach. State Farm has provided homeowners coverage to Sandusky and his wife since 1985, the insurer says in a complaint filed in the U.S. District Court for the Middle District of Pennsylvania. The policy, renewed annually, mainly covered the couple's property

Expert Testimony: EXPERT TESTIMONY ISN'T NEEDED TO SHOW BAD FAITH, 11TH CIRCUIT SAYS, Tardiff v. Geico Indem. Co., 8 No. 7 Westlaw Journal Insurance Bad Faith 2, Westlaw Journal Insurance Bad Faith August 7, 2012 The 11th U.S. Circuit Court of Appeals has upheld the exclusion of an insurance consultant's expert testimony from a suit against Geico Indemnity Co., finding that Florida juries do not need experts to determine if an insurance company has acted in bad faith. The three-judge panel said a layperson could "decide whether Geico acted in bad faith without the assistance of expert testimony" in a case in which Geico failed to settle a claim and exposed its clients to a $1.1 million judgment.

  Restraint of Trade: AETNA SUED FOR RESTRAINT OF TRADE, Kerner v. Aetna Health Plans of Cal., 8 No. 7 Westlaw Journal Insurance Bad Faith 11, Westlaw Journal Insurance Bad Faith August 7, 2012 A California plastic surgeon has filed a class-action lawsuit alleging health insurance giant Aetna bars doctors from participating in its plans if they refer patients to out-of-network providers. Marc M. Kerner, who practices in Northridge, filed the suit in the Los Angeles County Superior Court against Aetna Health Plans of California Inc., Aetna U.S. Healthcare Inc. and their related companies. The complaint alleges unfair competition in violation of Cal. Bus. & Prof. Code 17200

Contraception: MISSOURI GOVERNOR VETOES BILL BANNING MANDATORY BIRTH CONTROL COVERAGE, 22 No. 43 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage August 3, 2012 Missouri's Democratic Gov. Jay Nixon vetoed legislation July 12 that would have expanded moral and religious exemptions from insurance policies covering birth control. Drafted by Republican lawmakers, the bill stated that Missouri employers and insurers should not be compelled to provide coverage for abortion, contraception or sterilization if such medical procedures run contrary to their "religious beliefs or moral convictions." SB 749

Health Care Reform (Contraception): FEDERAL JUDGE TOSSES STATES' CHALLENGE TO OBAMA CONTRACEPTION RULE, State v. U.S. Dep't of Health & Human Servs., 22 No. 43 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage August 3, 2012 A federal judge has dismissed a lawsuit by seven attorneys general who sought to block a rule from the Obama administration's new health care reform law that requires employers to provide contraception coverage for workers. Nebraska Attorney General Jon Bruning sued on behalf of six other states, three Catholic nonprofit institutions and two Catholic individuals, alleging the rule violates the rights of employers and religious organizations that oppose the use of contraceptives

Reproductive Rights: PLANNED PARENTHOOD SUES ARIZONA OVER MEDICAID DEFUNDING LAW, Planned Parenthood Ariz. v. Betlach, 22 No. 43 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage August 3, 2012 Planned Parenthood and three of its patients have sued the state of Arizona in a bid to overturn a law that bans family planning organizations that perform abortions from participating in Arizona's Medicaid program and from receiving public funds. The law, signed by Republican Gov. Jan Brewer in May, applies to any health care provider that is eligible for federal funding under a Medicaid regulation, 42 U.S.C. 1396d(1)(2)(B). Scheduled to take effect Aug. 2, HB 2800 excludes cases

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL or HEALTH & INSURANCE Recent Decisions of Interest.

Tuesday, August 7, 2012

Mortgage foreclosure, securities fraud, contracts and tofu, tuscany kale, roaste pepper stir fry with fresh ginger and garlic

Admiralty -- Mortgages -- Preferred mortgage -- In rem admiralty action to foreclose a first preferred ship mortgage claimed by mortgagee bank on defendant vessel, which was assigned second identification number after execution of mortgage, documented under different name, and sold to third-party purchaser for value, all without notice to bank -- Third-party purchaser for value claims competing ownership interest in defendant vessel as subsequent innocent purchaser for value -- Validity of mortgage -- Bank is not entitled to preferred ship mortgage status under Ship Mortgage Act because mortgage was invalid to create a security interest in defendant vessel where mortgagor did not hold good and valid legal title to vessel on day he executed the mortgage -- Only a valid mortgage is eligible for preferred status under Ship Mortgage Act -- Notwithstanding mortgagor's failure to permanently affix the HIN to vessel, in violation of federal law, at time of application for initial issue of certificate of documentation, substantial compliance with recordation requirements of Ship Mortgage Act is adequate to show eligibility for preferred status, where there was no evidence of fraud or purposeful intent to evade or mislead on part of mortgagee -- Irregularities in recorded mortgage documents or failure to comply with minutiae of recording will not result in loss of preferred status of mortgagee where there is “honest and substantial compliance” with recordation requirements of Ship Mortgage Act -- Equitable subordination -- Bank's conduct justifies the equitable subordination of its claimed preferred ship mortgage to interest claimed by third-party purchaser for value gross, where bank deviated from acceptable banking practices when it decided to forego a declaration of default on loan and granted a five-year extension of loan term without inspecting or reevaluating the collateral or insisting on proof of insurance and where bank failed to insist that mortgagor permanently affix the HIN on the vessel before initial documentationBRANCH BANKING & TRUST CO. of VIRGINIA, Plaintiff, v. M/Y “BEOWULF,” Official No. 1137719, etc., in rem, Defendant. U.S. District Court, Southern District of Florida.

Attorney's fees -- Proposal for settlement -- Circuit court, in its appellate capacity, departed from essential requirements of law in denying motion for entitlement to recover a conditional award of appellate costs and attorney's fees under section 768.79, on ground that petitioner's success in obtaining a reversal of the county court order on appeal was not itself a money judgment -- Statute plainly encompasses all costs and attorney's fees incurred leading up to a final judgment -- If proposal for settlement statute is ultimately satisfied, petitioner will be entitled to recover its appellate costs and feesSTATE FARM FIRE AND CASUALTY COMPANY, Petitioner, v. REMBRANDT MOBILE DIAGNOSTICS, INC. a/a/o NERECE FRANCOIS, Respondent. 4th District.

Attorney's fees -- Proposal for settlement -- Timeliness of proposal -- Proposal for settlement which was served on the 45th day before trial date was timely under rule 1.442(b), which provides that “No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier” -- Because the proposal for settlement was required to be served 45 days before the date set for trial, the proper method for counting the 45 days is to include the day the proposal for settlement was served and to exclude the date set for trialR.T.G. FURNITURE CORP. d/b/a ROOMS TO GO, Appellant, v. FRANKLIN COATES and LORIE A. COATES, Appellees. 4th District.

Banks -- Checking accounts -- Disputed transactions -- Electronic Fund Transfer Act -- Bank customer sued her bank to recover for unauthorized withdrawals from her checking account, made using her check card and personal identification number, alleging bank failed to conduct reasonable investigation of her claim, failed to follow EFTA's claim-resolution procedures, and unlawfully held her liable for unauthorized transactions -- In denying EFTA claims against bank, district court did not err in finding that transactions were authorized because they were part of scheme to defraud the bank and, consequently, that bank had not violated EFTA
 CARLINE MERISIER, Plaintiff-Appellant, v. BANK OF AMERICA, N.A., a national association, Defendant-Appellee. 11th Circuit.

Bankruptcy -- Exempt property -- Debtor's bank account and household furniture owned with his non-debtor spouse as tenants by entirety are non-exempt in their entirety under Section 522(b)(3)(B), and proceeds of such property may be distributed by Chapter 7 trustee to joint creditors of debtor and his spouse to extent of the joint unsecured claims, with any remainder to be returned to debtor and his spouse -- Only joint unsecured creditors of debtor and his non-debtor spouse are entitled to a distribution from property -- Allowing all unsecured creditors to reach entireties property would give non-joint creditors a right in bankruptcy estate that does not exist under Florida lawIn re: JAMES T. HELM, Debtor. U.S. Bankruptcy Court, Southern District of Florida, West Palm Beach Division.

Civil rights -- Handicapped persons -- Employment -- Arbitration -- Federal district court is required to stay pending arbitration action against employer alleging disability discrimination in violation of the Americans with Disabilities Act where arbitration agreement required plaintiff to submit to mandatory arbitration certain types of disputes, including ADA claims -- Arbitration agreement is enforceable pursuant to Federal Arbitration Act -- Employer's overall employment practices constitute activity involving commerce sufficient to satisfy FAA's threshold requirement of interstate commerce, even though plaintiff's individual work and contacts may have been limited to Florida -- Arbitration agreement, which purports to shift responsibility for half of costs of arbitration to plaintiff, is not unenforceable for limiting remedies that plaintiff would otherwise have available to her under ADA or for shifting costs to plaintiff, where employer stipulated that it will pay all costs associated with arbitrationSTACY LIPSCOMB, Plaintiff, v. PAYROLL MANAGEMENT INC.; PAYROLL MANAGEMENT INC. of DELAWARE; and PMI EMPLOYEE LEASING, INC., Defendants. U.S. District Court, Northern District of Florida, Pensacola Division.

Dissolution of marriage -- Contempt -- Trial court erred in holding former husband in contempt for failure to provide health insurance for children as required by mediated marital settlement agreement, where husband did provide health insurance for children, but the insurance provided was deemed to be inadequate -- Settlement agreement required husband to provide health insurance for children, but did not specify any particular attributes of the insurance to be provided -- Trial court erred in holding former husband in contempt for failure to pay for children's extracurricular activities as required by agreement where such expenses have increased since time agreement was entered into and there has been no consent to payment of additional expenses -- Former wife's motion for contempt was premature in the sense that post-agreement additional, increased obligations were required to be addressed in motion for modification before any enforcement action relating to the obligations could be commencedGEOFFREY ALEXANDER COLE, Appellant, vs. NANCY COLE, Appellee. 3rd District.

Estates -- Assets -- Joint property -- Antenuptial agreement allowing decedent to acquire separate property after the marriage -- Trial court erred in modifying its initial determination that a watch and ring purchased by decedent were assets of the estate, not the sole property of decedent's wife, due to the fact that items were purchased with funds from the spouses' joint checking account -- The joint tenancy nature of the funds in the joint account with right of survivorship was terminated upon their withdrawal by the decedent -- Moreover, the fact that the wife was with the decedent at the time of purchase does not make the items joint property -- It is for whom the items were purchased rather than how they were purchased that is important -- Unity of possession was not present for either the watch or ring where decedent had exclusive use and possession of the items, items were designed for a man, and wife only took possession to store them for safekeeping while decedent was in hospitalWILLIAM P. CONNELL, as Personal Representative of the Estate of Peter W. Connell, Deceased, Appellant, v. FANA CONNELL, Appellee. 2nd District.

Jurisdiction -- Prohibition -- Torts -- Automobile accident -- Third-party complaint against liability insurance carrier -- Trial court lacked jurisdiction over third-party bad-faith complaint against defendant's liability insurer, which was labeled by plaintiff as a crossclaim, where pleading was filed after trial court had entered final judgment in tort case and after time for filing motions for rehearing or new trial had passed -- Order denying insurer's motion to dismiss quashed, without prejudice to plaintiff's raising claim as separate and independent cause of actionLIBERTY INSURANCE CORPORATION, Petitioner, v. SUSAN M. MILNE and TIMOTHY P. LITERSKY, Respondents. 4th District.

Mortgage foreclosure -- Arbitration -- Trial court erred in denying motion to compel arbitration of mortgage foreclosure dispute where mortgages required arbitration of any claim or controversy between the parties when requested by either party, despite the fact that there was a clause in mortgages that might be read otherwiseMDC 6, LLC, a Florida limited liability company; MEDALLION CONVENIENCE STORES, INC.; and KENNETH L. WOOD, Appellants, v. NRG INVESTMENT PARTNERS, LLC, Appellee. 2nd District.

Mortgage foreclosure -- Bona fide purchaser without notice of prior mortgage -- Constructive notice of prior mortgage attached at time deed and mortgage were recorded by clerk, despite fact that clerk voided the deed and mortgage from the official records after realizing she made a mistake in the recording process and subsequently failed to re-record deed and mortgage in official records book after error was corrected -- Statute does not require that documents remain in official records to impart constructive notice, but merely requires that, to be good and effectual against bona fide purchasers, a document must “be recorded according to law” -- Trial court properly granted summary judgment of foreclosure on ground that deed and mortgage were recorded in accordance with section 695.11 and provided constructive notice to subsequent purchasers and mortgageeMICHAEL D. MAYFIELD, BONNIE J. MAYFIELD, AND BRANCH BANKING AND TRUST COMPANY, Appellants, v. FIRST CITY BANK OF FLORIDA, Appellee. 1st District.

Securities -- Fraud -- Class action -- Appeal arising from private securities fraud class action brought under Section 10(b) of Securities Exchange Act and SEC Rule 10b-5 by investors, alleging that class members purchased stock at prices that were artificially inflated because defendant holding company and its management fraudulently misrepresented level of risk associated with commercial real estate portfolio held by its subsidiary and that those shares lost value when portfolio's deterioration was revealed to market -- District court erred when it relied on perceived inconsistency between two of jury's interrogatory answers as ground for discarding one of them and granted defendants' Rule 50 motion for judgment as matter of law on the basis of jury's remaining findings, instead of considering whether evidence was sufficient to support verdict in favor of plaintiff -- When a court considers a motion for judgment as matter of law, even after the jury has rendered a verdict, only the sufficiency of evidence matters -- Loss causation -- In this case, evidence was insufficient to support a finding of loss causation, an element required to make out a securities fraud claim under Rule 10b-5 -- To support a finding that defendant's misstatements were a substantial factor in bringing about plaintiff's losses, plaintiff had to present evidence that would give a jury some indication of how much of the decline in stock price resulted not from the fraud but from the general downturn in Florida's real estate mark, the risk of which defendant warned of, and plaintiff failed to do so -- Because plaintiff failed to adequately separate losses caused by fraud from those caused by collapse of Florida real estate market, jury did not have sufficient evidentiary basis to conclude that fraud was substantial contributing factor in bringing about class's losses -- Defendant was entitled to judgment as matter of law
JOSEPH C. HUBBARD, individually and on behalf of all others similarly situated, Plaintiff, STATE-BOSTON RETIREMENT SYSTEM, Plaintiff-Appellant, v. BANKATLANTIC BANCORP, INC., JAMES A. WHITE, VALARIE C. TOALSON, JARETT S. LEVAN, ALAN B. LEVAN, Defendants - Appellees. 11th Circuit.

Trusts -- Trustee -- Removal -- Portion of order removing trustee as a sanction for breach of fiduciary duty is reversed where trustee was not provided with notice or opportunity to be heard -- While trustee was aware of a sanction being sought against him for his failure to comply with discovery, that sanction was for imposition of attorney's fees, not removal -- Additionally, nothing in prior contempt order giving trustee twenty days to comply with discovery put trustee on notice that removal was possible sanction -- Furthermore, where order expressly stated sanction was imposed not only for trustee's failure to provide accounting, but also for failing to comply with previous court orders, sanction is analogous to indirect contempt order which requires notice and opportunity to be heardEDWARD HARRIS KOUNTZE, Individually and as the Trustee of the Denman Kountze, Jr., Revocable Trust, Appellant, v. CHARLES DENMAN KOUNTZE, Appellee. 2nd District.

The Law Lady.  For more info about us, click here.  To be added to our email circulation with MUCH more law, click here and specify whether you wish to be added to our CRIMINAL, CIVIL or HEALTH & INSURANCE Recent Decisions of Interest.