Sunday, January 17, 2010

Greek oregano on mozzarella with fire roasted tomatoes and commercial law issues

Contracts -- Contingency fee agreement with attorney who represented plaintiffs in personal injury action -- Where agreement provided that attorney would be paid “33 1/3% of any recovery . . . through the time of the filing of an answer,” and no answer was filed, attorney was entitled to 33 1/3 percent of amount recovered in settlement with personal injury defendant -- Attorney breached terms of agreement by retaining 40 percent of settlement recovery
Reported at 35 Fla. L. Weekly D169a

Guardianship -- Incapacitated persons -- Torts -- Settlement -- Attorney's fees -- Under unique circumstances of case, it was improper for probate court to strike law firm's amended petition to approve settlement of brain-injured ward's claims for full policy limits of the only two insurance policies that applied to collision between ward's bicycle and car and to confirm law firm's retention as counsel without determining whether it was reasonably necessary to employ attorney on behalf of ward and that contract by which attorney was employed was fair and reasonable at the time it was entered into
Reported at 35 Fla. L. Weekly D162a

Workers' compensation -- Temporary partial disability -- Change of physician -- Judge of compensation claims erred in denying claimant's request for one-time change in physician on ground that work-related accident was not major contributing cause of claimant's need for treatment -- One-time change is mandatory, regardless of whether initial authorized physician opines that compensable accident is no longer the major contributing cause of claimant's need for treatment -- Where employer/carrier did not authorize at least one specific physician within five days of claimant's request for change of physician, claimant was entitled to select her own physician -- Employer/carrier's acknowledgment of claimant's entitlement to change in physician does not satisfy requirement that e/c authorize an alternative physician within five days -- Judge of compensation claims did not err in denying temporary partial disability benefits from date of maximum medical improvement through date of final hearing
Reported at 35 Fla. L. Weekly D167b

Civil procedure -- Default -- Vacation -- Jurisdiction -- Circuit court appellate division departed from essential requirements of law in ruling that county court lacked jurisdiction to sua sponte reconsider default final judgment and vacate the default one day after judgment was rendered -- Trial court is permitted to sua sponte order rehearing or new trial within ten days after entry of judgment -- Further, circuit court applied wrong standard in reviewing trial court's order vacating default judgment -- Order granting motion to vacate default final judgment is reviewed under a gross abuse of discretion standard
Reported at 35 Fla. L. Weekly D156a

Insurance -- Health insurance -- Compromise verdict -- Jury verdict finding that defendant health insurer breached contract but awarding zero damages was not a compromise verdict requiring a new trial where jury could have reasonably concluded that plaintiff sustained zero damages
Reported at 35 Fla. L. Weekly D155b

Torts -- Jurisdiction -- Non-residents -- Cause of action arising from operating, conducting, engaging in, or carrying on a business or business venture in state or having an office or agency in state -- Club which is not-for-profit New York corporation, which has members domiciled throughout United States, including Florida, which has no offices, and whose business is conducted from homes of its board members, is subject to jurisdiction under Florida long-arm statute in action brought by Florida resident who is a board member and who conducts club business from her home -- Plaintiff's home was a de facto office of the club -- Club which receives dues from Florida residents, which has held dog shows and meetings in Florida, and which receives advertising revenue from its monthly magazine which is mailed to members in Florida has sufficient minimum contacts with state to satisfy due process -- Error to grant defendant club's motion to dismiss for lack of personal jurisdiction
Reported at 35 Fla. L. Weekly D159a

Under Florida law, the voluntary-payment provision of contractor's commercial general liability policy prevented the recovery of the costs which the contractor incurred in repairing the interiors of condominium units damaged as result of a subcontractor's faulty workmanship. The contractor did not obtain the insurer's consent before making payments or incurring costs with regard to the building, and the insurer never wrongfully refused to provide the contractor with a defense to any suit and never denied coverage outright.

In re Crites,(Bkrtcy.M.D.Fla.)
Bankruptcy - Financial statement that creditor prepared could not be utilized to except debt from discharge.
A financial statement that a creditor had assisted a Chapter 7 debtor in preparing, in his capacity as a financial advisor to the debtor's business and as someone who was well-versed in all of the debtor's financial affairs, in an unsuccessful attempt to obtain a business loan from a third party lender, could not be utilized by the creditor in an attempt to except from discharge the debtor's obligation on his personal guarantee of loans that the creditor had made to the debtor's business in reliance on the close relationship that existed between parties. The creditor failed to establish either that the financial statement, which the creditor had a large part in preparing, was materially false, or that the creditor relied thereon in making the loans.

Pendergast v. Sprint Nextel Corp. ,(C.A.11 (Fla.))
Commercial Law - Question would be certified to determine how to evaluate procedural and substantive unconscionability.
A question would be certified to the Florida Supreme Court to determine, under Florida law, what type of analytical framework courts should use in evaluating procedural and substantive unconscionability in determining whether a class action waiver is unenforceable. The specific question was whether courts evaluate both procedural and substantive unconscionability simultaneously in a balancing or sliding scale approach, or whether courts consider either procedural or substantive unconscionability independently and conclude their analysis if either one is lacking.

In re Ginn-La St. Lucie Ltd., LLLP ,(Bkrtcy.S.D.Fla.)
Bankruptcy - All lot owners in luxury community owned by debtor did not have to join in declaratory judgment proceeding.
Lot owners in a luxury, resort-style gated community owned and operated by a Chapter 7 debtor, who received notice of, but declined to join in, an adversary proceeding brought by some of their fellow lot owners, were not necessary parties to this proceeding, in which the plaintiff lot owners sought a declaratory judgment that the membership plan governing the community was in the nature of a covenant running with the land, which the debtor could not reject prior to selling the development to a third party, for purpose of eliminating the third party's obligation to construct golf courses and other amenities. The bankruptcy court could accord complete relief, in the form of a determination that the membership plan was either a covenant running with the land or an executory contract rejectable by the debtor, without the need to join these other lot owners. Moreover, the absent lot owners' interests were sufficiently aligned with those of the existing parties that the existing parties could represent them, and there was no risk of inconsistent judgments.

Connecticut State Dental Ass'n v. Anthem Health Plans, Inc. ,(C.A.11 (Fla.))
Insurance - Dentists' claims against managed dental care plan were subject to removal based on complete preemption under ERISA.
Dentists' state law claims against a managed dental care plan for breach of contract, breach of the duty of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (UPTA), negligent misrepresentation, and unjust enrichment were subject to removal based on complete preemption under Employee Retirement Income Security Act (ERISA). The claims alleged, inter alia, that the plan improperly denied reimbursement for medically necessary services. The claim forms submitted to the plan for reimbursement for dental services established valid assignments of benefits under the plan by the dentists' patients, so that the dentists had standing to assert claims for payment of benefits. Furthermore, although some of the claims implicated the amount that the dentists were owed under their provider agreements with the plan, the coverage claims seeking benefits under the plan arose solely under the ERISA and not from any independent legal duty.

Weiss v. Standard Ins. Co. ,(S.D.Fla.)
Insurance - Insured who was capable of working conventional schedule had "work ed with reasonable continuity."
An insured who performed all of his occupational duties as an electrophysiologist for 12 straight days in each and every month, and then took regularly scheduled time off, during the relevant time period without any need of pain medications, either prescription or over the counter, had "worked with reasonable continuity," and thus did not suffer from a long-term disability under Florida law as required to be eligible for benefits under a long-term disability insurance policy. Although the insured kept an unconventional schedule, he was capable of working a conventional schedule.

Kelecseny v. Chevron, U.S.A., Inc. ,(S.D.Fla.)
Products Liability - Individual inquiry would predominate in class action alleging oil companies failed to warn of ethanol fuel's risk to boats.
Individualized inquiries would predominate over common issues if the proposed damages class of Florida boat owners were certified in an action against oil companies under a market share theory of negligence for the defendants' failure to warn of the dangers posed by ethanol blended gasoline (E10) to watercraft with fiberglass fuel tanks. Individual inquiry into whether E10 warnings were posted where each member purchased fuel would be required to determine whether the defendants failed to warn. Moreover, determination of proximate cause and comparative fault would require individualized inquiry into whether each member had personal knowledge that E10 could damage fiberglass tanks, and the market share liability theory would require establishing a narrowly tailored geographic market for each member.

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Saturday, January 9, 2010

Unbundled legal services recommended to help clients

"Unbundled legal services are one way to close a justice gap that is growing as more people find themselves unable to afford a lawyer, according to the chief justices of the California and New Hampshire supreme courts.

Writing in the New York Times, Chief Justices John Broderick Jr. of New Hampshire and Ronald George of California note that 41 states have adopted an ABA model rule that allows lawyers to take on only part of a case. The practice is known as “limited-scope representation” or unbundled legal services.

With proper ethical safeguards, lawyers offering unbundled legal services—particularly solo practitioners--may be able to help some people who would otherwise have never hired a lawyer, they say. “For those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage,” they write.

“We need members of the legal profession to join with us, as many have done, in meeting this challenge by making unbundled legal services and other innovative solutions—like self-help websites, online assistance programs and court self-help centers—work for all who need them.” "
Published in:
ABA Journal Law News
posted by By Debra Cassens Weiss Jan 4, 2010 10:56 AM CST

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