Child custody, service of process, venue, and oak grilled salmon-radicchio-shallot melange

Attorneys -- It was an abuse of discretion to impose monetary sanctions against plaintiff's attorney for his violation of a confidentiality agreement by disclosing defendants' financial institutions without finding that the violation was intentional -- Trial court properly denied attorney's motion for relief from sanction order on basis of settlement agreement in a separate case where settlement agreement related solely to that separate case

GARY W. ROBERTS, Appellant, v. ALFRED O. BONATI, M.D.; GULF COAST ORTHOPEDIC CENTER -- ALFRED O. BONATI, M.D., P.A.; MEDICAL DEVELOPMENT CORPORATION OF PASCO COUNTY, d/b/a THE BONATI INSTITUTE; JAMES S. ST. LOUIS, D.O.; PATRICIA SHAW-CAILLOUET; and ALLEN CAILLOUET, Appellees. 2nd District.

Civil procedure -- Pro se filings -- Prohibition -- Appeals -- Certiorari -- Arguments in support of petitioner's claim that circuit court departed from essential requirements of law in barring petitioner from future pro se filings are without merit -- Certiorari denied

KEVIN M. OWENS, Petitioner, v. MIKE FORTE, VILLAGE INVESTMENTS, INC., and CYPRESS PARK GARDEN HOMES CONDOMINIUM ASSOCIATION, Respondents. 2nd District.

Civil procedure -- Service of process -- No error in setting aside prior default judgment and deciding to dismiss lawsuit with respect to some defendants for failure to perfect service within time frame specified by procedural rule -- Error to find that plaintiff failed to serve five defendants during required time frame where requested proof of service was filed before court issued its final order

ANTONIO WARD, Appellant, v. MICHAEL D. CREWS, Secretary, Florida Department of Corrections, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Attorney's fees -- Error to award wife fees incurred in litigation of child custody dispute where marital settlement agreement ratified by trial court during pendency of dispute explicitly provided that each party would be responsible for own attorney's fees

JOANNIS SAPICAS SALISELE, Appellant, v. NAMIVIA SAPICAS, Appellee. 3rd District.

Dissolution of marriage -- Child custody -- Husband waived challenge to portion of final judgment naming former wife “the Majority 100% Time-Sharing parent” by failing to raise issue in his first direct appeal of dissolution judgment -- Child support -- Arrearage -- Record does not support trial court's findings regarding amount of former husband's child support arrearages -- Remand for recalculation

MAHMOUD NASSIROU, Former Husband, Appellant, v. NELLIE BORBA NASSIROU, Former Wife, Appellee. 1st District.

Dissolution of marriage -- Child custody -- Visitation -- Jurisdiction -- Adult disabled son -- Circuit court lost subject matter jurisdiction under Chapter 61 for purposes of custody and visitation of parties' disabled son when son reached age of majority -- Accordingly, order finding that former husband could exercise visitation with adult son, with certain conditions, and directing former wife to accompany son or pay an airline representative or nurse to do so is void

SUSAN HARDMAN, FORMER WIFE, Appellant, v. HARRY KOSLOWSKI, FORMER HUSBAND, Appellee. 1st District.

Dissolution of marriage -- Modification of judgment -- Military retirement -- Where marital settlement agreement incorporated into final judgment provided that former wife was entitled to 27.5 percent of former husband's military pension which had accrued during eleven-year marriage, and judgment awarded former wife 27.5 percent of former husband's disposable retired pay upon his retirement from military service, with court retaining jurisdiction to reconsider the percentage of retired pay due to former wife should former husband retire before completing twenty years of service, court had jurisdiction to consider former husband's petition to establish that former wife was entitled only to 27.5 percent of the amount of pension available after twenty years of service, although former husband retired after thirty years of service -- Court improperly dismissed former husband's petition as an untimely motion to modify judgment -- Former husband's petition was not an attempt to modify judgment, but was, instead, an attempt to enforce terms of judgment as he understood them

JEFFREY INGRAM, Appellant, v. SHELLY INGRAM, Appellee. 2nd District.

Injunctions -- Contracts -- Employment -- Noncompetition covenants -- Trial court erred in denying former employer's request for temporary injunction to enforce restrictive covenants in employment agreements on ground that former employer's failure to pay certain bonuses due under the agreements constituted a prior breach that rendered the agreements, and thus the restrictive covenants, unenforceable -- Each agreement expressly provided that each restrictive covenant was independent of any other covenant or provision of the agreement and that the existence of any claim or cause of action by the employee against the employer would not constitute a defense to the enforcement by the employer of any other covenant -- Trial court did not err in concluding that cessation of business by original corporate employer did not render restrictive covenants unenforceable by corporation's affiliate where employment agreements expressly provided that its affiliates were deemed to be third-party beneficiaries under agreements with right to seek enforcement of the agreements

RICHLAND TOWERS, INC., a Florida corporation; and RICHLAND TOWERS, LLC, a Florida limited liability company, Appellants/Cross-Appellees, v. DAVID DENTON, individually; DALE A. WEST, individually; and TALL TOWER VENTURES, LLC, a Florida limited liability company, Appellees/Cross-Appellants. 2nd District.

Mortgage foreclosure -- Error to dismiss second amended foreclosure complaint based on plaintiff's failure to prove that its loan servicer had authority to verify the foreclosure complaint at that stage of the litigation -- Plain language of rule does not require servicer to file evidence with the foreclosure complaint proving that it had authority to verify the complaint

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE8, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE8, Appellant, v. ROBERT PLAGEMAN and MARY PLAGEMAN, Appellees. 2nd District.

Mortgage foreclosure -- Service of process -- Defect in defendant's proper legal name was not sufficient to vitiate process served where defendant admitted that personal service was made on her and that she was the mortgagor on the mortgage sought to be foreclosed -- Appeal from order granting substitution of parties, which court treats as motion to amend to correct defendant's name, is dismissed, as order is non-final, non-appealable order

SUZANA POPESCU, Appellant, v. JP MORGAN CHASE BANK, NA, Appellee. 4th District.

Public records -- Attorney's fees -- Where transit authority delayed in producing requested public records, trial court erred in denying award of attorney's fees and costs to requesting party on basis that authority's failure to furnish records before suit was filed was not willful -- Proper question before court on request for attorney's fees and costs was whether authority unlawfully refused to produce records, not whether any such refusal was willful -- Unlawful refusal includes not only affirmative refusal to produce records, but also unjustified delay in producing them -- Trial court must determine whether the delay was justified under the facts -- If the delay was not justifiable, the delay constitutes unlawful refusal

STEWART LILKER, Appellant, v. SUWANNEE VALLEY TRANSIT AUTHORITY and GWENDOLYN PRA, Administrator, in her official capacity as the Suwannee Valley Transit Authority's Custodian of Records, Appellees. 1st District.

Torts -- Civil procedure -- Summary judgment -- Discovery pending -- Entry of summary judgment in favor of defendant was premature where plaintiff's counsel was still seeking to depose witness whose identity was not revealed by defendant until defendant filed its motion for summary judgment -- Although non-moving party cannot thwart summary judgment hearing by initiating discovery after motion for summary judgment is filed and hearing scheduled, it did not appear in instant case that pending discovery was scheduled to thwart summary judgment hearing

DORA HARPER, Appellant, v. WAL-MART STORES EAST, L.P., Appellee. 5th District.

Venue -- Where settlement agreement, which had settled foreclosure action by mortgagor assigning to mortgagee 50 percent of the net proceeds awarded for damages in mortgagor's action against its insurance carrier in Miami-Dade County, contained mandatory venue selection provision requiring any litigation between mortgagor and mortgagee to be tried in Osceola County, trial court erred in denying motion to enforce the venue selection provision

EVERBANK, a Federal Savings Bank, Appellant, v. ATLANTIC HOSPITALITY OF FLORIDA, LLC, EAST COAST PUBLIC ADJUSTERS, INC., EAST COAST APPRAISERS, LLC and MINTZ TRUPPMAN, P.A., Appellees. 3rd District.

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Recent Insurance Law Decisions, Attorney's Fees, and lump crab cakes atop arugula and mustard-cumin pudding

Amzak Capital Mgmt. v. Stewart Title

Court: U.S. 5th Circuit Court of Appeals

Docket: 13-30675

Opinion Date: February 27, 2014

Judge: Jones

Areas of Law: Banking, Bankruptcy, Insurance Law, Real Estate & Property Law

Amzak appealed the district court's summary judgment on its loan loss claims against its title insurance policy provider and related entities. The court concluded that Amzak failed to show that it suffered actual loss because of a failure of title and STL could not be held responsible for any harm suffered by Amzak. The court formalized the holding in First State Bank v. American Title and likewise rejected the guarantee rationale of Citicorp Savings of Illinois v. Stewart Title Guaranty Co., and agreed with the district court's rejection of Amzak's argument that STL breached the title policy at the time of the loan because its mortgage was voidable at that time. The court also disposed of Amzak's negligence claim where STL's delay in making a complete filing of Amzak's mortgage was not a legal cause of Amzak's loss. Accordingly, the court affirmed the judgment of the district court.

http://j.st/ZZJA

Crain v. State Farm Mut. Auto. Ins. Co.

Court: U.S. 8th Circuit Court of Appeals

Docket: 13-1903

Opinion Date: March 6, 2014

Judge: Riley

Areas of Law: Insurance Law

Plaintiff filed suit against State Farm in Missouri state court, seeking to recover underinsured motorist (UIM) benefits under plaintiff's policy with State Farm (the Pontiac policy). State Farm removed to district court based on diversity of citizenship and then the district court granted summary judgment in favor of State Farm. The court affirmed the district court's conclusion that the State Farm policy unambiguously prohibited stacking UIM coverage limits. Plaintiff's argument was foreclosed in Daughhetee v. State Farm Mut. Auto. Ins. Co. where the court affirmed the lower court's determination that the language in an identical State Farm automobile policy unambiguously precluded policy stacking of UIM coverage limits under Missouri law.

http://j.st/ZZYT

Lester v. Allstate Prop. & Cas. Ins. Co.

Court: U.S. 6th Circuit Court of Appeals

Docket: 13-6070

Opinion Date: February 24, 2014

Judge: Sutton

Areas of Law: Insurance Law

After a fire damaged her house, Lester filed a claim with Allstate. The company asked Lester and her husband to answer questions under oath. Lester responded that they would submit to examinations only if Allstate first showed them its investigative files. Allstate refused to turn over the files, stating that doing so “could jeopardize the integrity” of its inquiry. Allstate eventually gave Lester 10 days to schedule an examination, warning that, if she did not submit to an examination, it would deny the claim. Lester never responded, but sued the company. The district court granted Allstate summary judgment. The Sixth Circuit affirmed, noting that the insurance policy requires Lester to “submit to examinations under oath” at Allstate’s request and that Tennessee law permits denial of a claim when the policyholder refuses to participate in an examination under oath. The company’s refusal to share its investigative files before examining her is reasonable and did not breach a duty of good faith. Tennessee presumes that failure to participate in an examination results in prejudice to the insurer, and makes it the policyholder’s burden to demonstrate that the company suffered no harm. Lester never introduced any evidence to rebut the presumption.

http://j.st/ZkzJ

Univ. of Notre Dame v. Sebelius

Court: U.S. 7th Circuit Court of Appeals

Docket: 13-3853

Opinion Date: February 21, 2014

Judge: Posner

Areas of Law: Constitutional Law, Health Law, Insurance Law

The Affordable Care Act, 42 U.S.C. 300gg-13(a)(4), requires health insurance providers (including third party administrators) to cover certain preventive services without cost to the insured, including, “with respect to women … preventive care and screenings,” including all FDA-approved contraceptive methods, sterilization, and patient education for women with reproductive capacity. The University of Notre Dame self‐insures employees’ medical expenses; Meritain administers the employee health plan. For students’ medical needs, Notre Dame has a contract with Aetna. Because Catholic doctrine forbids the use of contraceptives, Notre Dame has never paid for contraceptives for employees or permitted Aetna to insure the expense of contraceptives. Because of those religious objections and the Religious Freedom Restoration Act, 42 U.S.C. 2000bb‐1(a), the government created a religious exemption, 45 C.F.R. 147.130(a)(1)(iv)). New regulations enlarged the exemption, so that Notre Dame came within its scope. To exercise its right to opt out of paying for coverage for contraceptives, the university completed a form that alerts insurers that Notre Dame is not going to pay, so they will have to pay. The government will reimburse at least 110 percent of the third‐party administrator’s costs and Aetna can expect to recoup its costs from savings on pregnancy medical care. Several months after the regulations were promulgated, the University unsuccessfully sought a preliminary injunction. The Seventh Circuit affirmed, noting that the University had not indicated exactly what it wanted enjoined at this stage. The insurance companies were not parties, and, therefore, could not be enjoined from providing the required coverage. A religious institution has no right to prevent other institutions from engaging in acts that merely offend the institution and the University has complied by completing the required form.

http://j.st/ZkLM

Employee benefit plans -- Defined contribution 401(k) Plan -- Employee Retirement Income Security Act -- Breach of fiduciary duty -- Breach of statutory duties of prudence and loyalty -- Limitation of actions -- Action by former employee on behalf of Plan alleging, among other claims, that defendant-benefits committee members imprudently selected as investment options certain of plan sponsor's proprietary mutual funds and imprudently failed to remove those funds from the menu of investment options despite their continuing poor performance and high management fees -- Documents attached to defendants' motion to dismiss count asserting claims of imprudent selection and failure-to-remove as barred by ERISA's shorter three-year limitations period were insufficient to make requisite showing that plaintiff had actual knowledge of breaches where there was no showing that the attached documents had been provided to plaintiff or that plaintiff obtained knowledge of the facts in the documents from another source -- Claim of imprudent selection was barred by ERISA's six-year limitations period, which was triggered by defendants' initial selection of the funds for inclusion in the 401(k) plan -- Because claims concerning committee defendants' failure to remove certain funds were in all relevant respects identical to the allegations concerning the selection process, complaint contained no factual allegation of a material change in circumstances that would allow appellate court to distinguish between the alleged imprudent acts occurring at selection from the alleged imprudent acts occurring thereafter -- Accordingly, six-year limitations period for failure-to-remove claims was also triggered at time funds were initially selected as investment options

BARBARA J. FULLER, and all others similarly situated, Plaintiff-Appellant, SELETHIA PRUITT, et al., Plaintiffs, v. SUNTRUST BANKS, INC., THE SUNTRUST BANKS, INC. BENEFITS PLAN COMMITTEE, JORGE ARRIETA, HAROLD BITLER, MIMI BREEDEN, et al., Defendants-Appellees, TRUSCO CAPITAL MANAGEMENT, INC., et al., Defendants. 11th Circuit.

Guardianship -- Incapacitated person -- Attorney's fees -- Attorney who acted as co-counsel for ward in guardianship proceeding -- Trial court abused discretion in reducing amount of attorney's fees and charging attorney with costs on ground that attorney's services did not benefit ward -- Actions of attorney who contacted member of initial examining committee at ward's request to obtain a reassessment benefitted ward where reassessment brought to court's attention problems with committee's report, resulting in appointment of second examining committee -- Attorney's action of obtaining a reassessment by contacting an examining committee member was not clearly prohibited by law

In re Guardianship of Carol Padlina Rawl, an incapacitated person. LANCE M. McKINNEY, Appellant, v. GREGORY R. RAWL, as Guardian of the Property of Carol Padlina Rawl, an incapacitated person, Appellee. 2nd District.

Insurance -- Attorney's fees -- Trial court properly denied attorney's fees and costs where insurer did not wrongfully cause insureds to resort to litigation

ANA VIVAS, et al., Appellants, vs. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. 3rd District.

Insurance -- Personal injury protection -- Exhaustion of benefits -- Where reasonableness of a medical provider's claim is still in dispute, post-suit exhaustion of benefits extinguishes provider's right to further payments, so long as exhaustion is prior to the establishment of the amount to which the medical provider is entitled under PIP -- Once PIP benefits are exhausted through payment of valid claims, insurer has no further liability on unresolved pending claims absent bad faith in the handling of the claim by the insurance company -- Appeals -- Certified questions from county court -- Court discharges jurisdiction of one of the two cases before it in which county court certified three questions, as district courts have already ruled on one issue and have answered the question uniformly, and county court expressly did not rule or make any judicial determination on issues raised in the other two certified questions -- Appeal in that case transferred to circuit court

NORTHWOODS SPORTS MEDICINE AND PHYSICAL REHABILITATION, INC., (a/a/o SUZANNE CABRERA), and WELLNESS ASSOCIATES OF FLORIDA, INC., (a/a/o DANIEL NORTH), Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and USAA CASUALTY INSURANCE COMPANY, Appellees. 4th District.

Torts -- Automobile accident -- Discovery -- Law firm's financial relationship with plaintiff's treating physician -- Trial court did not depart from essential requirements of law by ordering law firm to provide list of payments made to plaintiff's treating physician over last 3 years

LYTAL, REITER, SMITH, IVEY & FRONRATH, L.L.P., Petitioner, v. JANET MALAY, as Personal Representative of the Estate of MAURICE BAKER, Respondent. 4th District.

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