Sunday, December 11, 2011

Insurance coverage, appellate court sanctions, and poached eggs on wild baby salad greens with garlic balsamic and olive oil vinagrette and homemade croutons and shaved parmesan

Arbitration Agreement: FLORIDA HIGH COURT REJECTS DAMAGES CAPS IN ARBITRATION AGREEMENTS, Gessa v. Manor Care of Fla., 14 No. 11 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home December 2, 2011
Provisions in a nursing home's arbitration agreement that limit a resident's potential noneconomic damages to $250,000 and bar the recovery of punitive damages violate public policy and are unenforceable, the Florida Supreme Court has ruled. The court's 4-2 majority said the limitation-of-liability provisions in the contract "directly frustrate" the remedies created by Florida's Nursing Home Resident's Rights Act.

Insurance -- Commercial liability -- Coverage -- Reformation -- Mutual mistake -- Appeal of declaratory judgment determining that coverage existed for a claim filed against insured arising from injuries sustained while consumer was using exercise ball sold by insured -- Declaratory judgment is reversed because trial court's findings of undisputed fact support reformation of parties' insurance policy based on mutual mistake where, although original policy included an exclusion schedule that was inadvertently left blank and insured was unaware that new copies of policy mailed to insured's agent contained corrected exclusion endorsement, insurer and insured agreed that the exercise balls would be excluded from coverage prior to the policy being issued -- Trial court's focus on how insurer failed to notify insured and insured's agent of the clerical error was misplaced because the manner of notification did not change undisputed fact that the corrected exclusion endorsement did not alter the parties' agreement to exclude the exercise balls
FEDERAL INSURANCE COMPANY, Indiana corporation, Appellant, v. DONOVAN INDUSTRIES, INC., a Florida corporation, Appellee. 2nd District.

Insurance Fraud (Durable Medical Equipment): GEICO ALLEGES $477K FRAUD BY MEDICAL EQUIPMENT SUPPLIERS, HEALTH CARE PROVIDERS, Geico v. Grand Med. Supply, 18 No. 21 Westlaw Journal Medical Devices 4, Westlaw Journal Medical Devices December 5, 2011 Several durable medical equipment suppliers and doctors participated in a scheme to defraud insurers by submitting fraudulent claims for the devices, a federal complaint by insurance giant Geico has alleged in a New York federal court lawsuit. The fraud cost Geico more than $477,000, according to the 12-count complaint filed in the U.S. District Court for the Eastern District of New York.

Insurance -- Homeowners -- Appraisal -- There is no rule or statute allowing for the filing of a petition to confirm an appraisal award -- Trial court erred in granting petition to confirm and entering final judgment pursuant to appraisal award -- Remand with instructions to allow insureds to file complaint alleging viable cause of action for insurer's failure to pay loss for ordinance and law coverage

Dissolution of marriage -- Mediation agreement -- Where initial mediation agreement, which was incorporated into final judgment, stated that parties were to share equally in a note receivable if any money was paid pursuant to the note, the only issue pending when parties entered into second mediation agreement was former husband's petition for modification of custody, and the second mediation agreement provided that, in all other respects the previous final judgment shall remain unmodified and in full force and effect, it was error for court to find that under the second agreement former wife was not entitled to a portion of the funds received pursuant to the note -- By changing the disposition of the funds received pursuant to the note, court modified the final judgment contrary to the plain language of the second agreement -- It was also error for court to deny former wife's motion to hold former husband in contempt for failure to pay child support without establishing amount of arrearage
KERRY HARVELL IRVIN, Appellant, v. MARCUS LANE IRVIN, Appellee. 2nd District.

SANCTIONS Kim v. Westmoore Partners, Inc.,(Cal.App. 4 Dist.) Sanctions - Counsel's violations of rules of court in connection with respondent's brief warranted $10,000 sanction The violations of the Rules of Court by counsel for the respondent warranted $10,000 in sanction. Counsel had requested an extension of time to file the brief, but subsequently filed a brief which was nearly identical to a brief which counsel earlier had filed in another action. The Court of Appeal found that the request for the extension of time was thus unreasonable, as the preparation of the brief, which did not address any of the allegedly "complex" issues actually raised on appeal, could not have claimed any significant amount of time. Furthermore, the brief violated the rule of court specifying the required contents of such briefs, as the brief did not contain any thoughtful analysis or relation to the facts of the current case. Rather, a comparison of the two briefs indicated that counsel, when asserting that the appellants had "falsely argued the case," had constructed his argument simply by redacting the facts recited in the earlier brief and reproducing the resulting rhetoric without reference to the current case. The Court found that counsel's conduct warranted $10,000 in sanctions

Trusts -- Accounting -- Error to enter final summary judgment ordering trustee to file accountings for various trusts where there were disputed issues of material fact and where affirmative defenses, including estoppel and waiver and statute of limitations defenses, were not negated -- Trustee waived reliance on New York law with respect to two trusts where trustee did not raise this issue in trial court -- Fact that one of those two trusts was not in record would not prevent summary judgment for an accounting where trustee did not dispute the fact that the trust was in existence and that moving party was a beneficiary -- With respect to two other trusts, each of which had a provision which left to the discretion of the trustee the distribution of an accounting to “beneficiaries eligible within the period covered thereby to receive benefits from the trust which is the subject of said account,” moving party did not conclusively show that he was a beneficiary eligible to receive distributions from these trusts -- Although Florida statute requiring an annual accounting now overrides trust provision to the contrary, movant would still be required to show his eligibility as a beneficiary for those periods prior to enactment of statute
DORIS RICH CORYA, and as Trustee of the Trust Under Will of Paul Rich, dated December 15, 1944, and DORIS RICH CORYA and PAUL J. RICH SANDERS as Trustees of the Trust Under Will of Eleanor M. Rich, dated June 10, 1964, and DORIS RICH CORYA, as Trustee of other trusts presently unknown, Appellants, v. ROY SANDERS and PAUL J. RICH, JR., Appellees. 4th District.

UNTIMELY APPEALS: Nationwide Ins. Co. v. Parmer,(Ind.App.) Appeals - Motion to reconsider does not toll time limit to certify an order for interlocutory appeal. As a motion to reconsider does not toll the time limit to file a notice of appeal, it necessarily follows that a motion to reconsider does not toll the time limit to certify an order for interlocutory appeal. This was decided as a matter of first impression by the Indiana Court of Appeals.

Walton v. State ,(Fla.) Criminal Justice - Porter decision could not form basis for untimely successive motion for collateral relief from death sentence. The Florida Supreme Court has held that the decision of the United States Supreme Court in Porter v. McCollum, holding that it was objectively unreasonable for a murder defendant's trial counsel to have concluded that there was no reasonable probability that the defendant's sentence would have been different had the sentencing judge and jury heard the significant mitigation evidence that trial counsel had neither uncovered nor presented, did not constitute a fundamental change in constitutional law mandating retroactive application in post-conviction proceedings. Rather, Porter addressed a misapplication of Strickland, and involved a mere application and evolutionary refinement and development of the Strickland analysis. Thus, the instant movant was not entitled to a hearing on his second successive, and untimely, motion for collateral relief from his sentence of death. This decision may not yet be released for publication.

U.S. v. All Funds in the Account of Property Futures, Inc. ,(S.D.Fla.) Criminal Justice - Claimants lacked Article III standing to assert claims in civil forfeiture action. The minority-interest members of limited liability companies (LLCs) lacked Article III standing to assert claims in a civil forfeiture action, on the members' own behalf, to the defendant real properties owned by the LLCs, which were allegedly acquired as the result of fraud. The minority-interest members had no ownership interest in the specific real properties that were subject to forfeiture. Rather, they had merely a proportionate equitable interest in the LLCs' general holdings.

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