2009 Florida House Bill No. 1041 111th Regular Session (SUMMARY - NETSCAN)
Emergency Services/Medicaid Managed Care Plans; Provides conditions for provision of services to enrollees of managed care plans by certain hospitals; provides time limits & rate structures for payment of claims to certain hospitals for services or goods by provider; revises requirements for reimbursement for provision of emergency services & care under health maintenance contract; provides for construction; provides applicability. EFFECTIVE DATE: 07/01/2009
2009 FL H.B. 1041 (NS)
2009 Florida Senate Bill No. 2192 111th Regular Session (SUMMARY - NETSCAN)
Florida Consumer & Small Business Arbitration Act; Creates said act. Provides that the act does not apply to certain insurance policies and certain arbitrations. Provides that mandatory binding arbitration is void and unenforceable except as otherwise provided by federal law. Provides proceedings to compel arbitration. Provides for the appointment of arbitrators and umpires. Authorizes an arbitrator or umpire to issue subpoenas for the attendance of witnesses and production of documents, etc.
2009 FL S.B. 2192 (NS)
2009 Florida Senate Bill No. 2158 111th Regular Session (SUMMARY - NETSCAN)
Pub. Rec./Claims Files and Medical Records; Provides an exemption from public records requirements for specified claims files, medical records that are part of a claims file, information relating to the medical condition or medical status of a claimant, and records pertaining to matters reasonably encompassed in privileged attorney-client communications of the Florida Insurance Guaranty Association. Provides for limited duration of the exemption for claims files, etc. EFFECTIVE DATE: 07/01/20009
2009 FL S.B. 2158 (NS)
2009 Florida House Bill No. 1385 111th Regular Session (SUMMARY - NETSCAN)
Children with Disabilities; Requires certain licensing boards to require continuing education on developmental disabilities for certain licensees & certificateholders; provides health insurance coverage & coverage under health maintenance contract for individuals with developmental disabilities; authorizes students who receive certain services under VPK to receive John M. McKay Scholarship for Students with Disabilities, etc. EFFECTIVE DATE: 07/01/2009
2009 FL H.B. 1385 (NS)
March 16, 2009
NEW FDA DECREE COVERS ALL CARDINAL 303 INFUSION PUMPS,
United States v. Undetermined Quantities of Boxes, 16 No. 2 Andrews Med. Devices Litig. Rep. 1, Andrews Medical Devices Litigation Reporter
The federal government has expanded a 2007 consent decree requiring medical device maker Cardinal Health 303 Inc. to bring its Alaris signature edition line of infusion pumps in compliance with Food and Drug Administration manufacturing and distribution standards to include all its infusion pump models.The revised consent decree was filed in the U.S. District Court for the Southern District of California.
March 16, 2009 HIP IMPLANT LAWSUIT AGAINST STRYKER CORP. IS PREEMPTED,
Horowitz v. Stryker Corp., 16 No. 2 Andrews Med. Devices Litig. Rep. 2, Andrews Medical Devices Litigation Reporter
A Brooklyn, N.Y., federal judge granted Stryker Corp.'s motion to dismiss a plaintiff's lawsuit for failure to warn of the Trident artificial hip system--the Trident ceramic acetabular hip system she received two years earlier might emit constant creaks and ticking. The court cited the failure to show that her action "parallels" existing Food and Drug Administration standards for the device.
March 16, 2009 CONGRESS LOOKS TO UNDO MEDICAL DEVICE RULING, 16 No. 2 Andrews Med. Devices Litig. Rep. 3, Andrews Medical Devices Litigation Reporter
Last year the U.S. Supreme Court ruled 8-1 in Riegel et al. v. Medtronic Inc. that a 32-year- old federal regulation shields medical device makers from liability under state laws in suits claiming injury from devices that received Food and Drug Administration approval. Congress has introduced joint bills to reverse key U.S. Supreme Court decision that barred patients injured by medical devices from suing for damages in state court.
March 16, 2009 DEVICE SUIT RETURNED TO IND. STATE COURT; SALES REP AT ISSUE, Gibbs v. I-Flow Inc., 16 No. 2 Andrews Med. Devices Litig. Rep. 4, Andrews Medical Devices Litigation Reporter
An Indiana federal judge, U.S. District Judge William T. Lawrence rejected defendant I-Flow Corp.'s argument that a product liability suit should stay in federal court because the sales representative was fraudulently joined. Timothy Gibbs sued I-Flow, a pain pump maker, and sales representative Barbara Rowland in the Hendricks County Superior Court in March 2008. The federal court has returned the product liability suit against the defendants to state court, finding crucial questions over the liability of the defendant company's sales agent.
DEVICE MAKER DENIES NEGLIGENCE IN TEXAS PEDICLE SCREW SUIT, Thompson v. Allez Spine, 16 No. 2 Andrews Med. Devices Litig. Rep. 5, Andrews Medical Devices Litigation Reporter March 16, 2009
Medical device maker Allez Spine has denied a Texas woman's claims that its failure to properly design and manufacture a spinal fixation screw forced her to endure two corrective operations and permanently diminished her physical agility. The company says the "learned intermediary" doctrine shields it from plaintiff Penny Thompson's claims because it provided all warnings regarding the risks associated with the device to the surgeon who recommended it to her.
March 16, 2009 DAUGHTER SAYS FAULTY DEFIBRILLATOR KILLED PA. MAN, Cathcart v. St. Jude Med., 16 No. 2 Andrews Med. Devices Litig. Rep. 6, Andrews Medical Devices Litigation Reporter
Two Pennsylvania sisters have sued for more than $825,000 in damages in a federal court wrongful-death suit, alleging their father died after receiving dozens of unwarranted electric shocks from a faulty implantable defibrillator made by St. Jude Medical Inc. The lawsuit alleges Harry Welshans died in February 2007 because his St. Jude model V-193 defibrillator delivered unneeded shocks to his heart at a rate of about one every two minutes in the hours before his death.
March 16, 2009 MEDTRONIC SAYS SPINAL DEVICE SUIT IS PREEMPTED, Lovett v. Medtronic, 16 No. 2 Andrews Med. Devices Litig. Rep. 7, Andrews Medical Devices Litigation Reporter
Arguing the suit is barred because it suggests that Medtronic follow design, labeling and manufacturing standards other than those established for the device through the Food and Drug Administration's premarket approval process, Medtronic Inc. has asked a Nevada federal judge to dismiss as federally preempted a suit by a woman who says she was injured when her implanted spinal stimulator stopped working and required removal after two years.
Product Defect (Hip Implant): STRYKER SUED OVER SQUEAKY HIP IMPLANT, Gelber v. Stryker Corp., 16 No. 2 Andrews Med. Devices Litig. Rep. 8, Andrews Medical Devices Litigation Reporter March 16, 2009
Michigan-based Stryker removed to New York federal court a product liability and breach-of-warranty lawsuit filed by Jeannette Gelber who says she has been plagued by squeaking noises from her Trident artificial hip since shortly after it was implanted. Stryker removed from the Rockland County Supreme Court to the U.S. District Court for the Southern District of New York Feb. 13, citing diversity jurisdiction.
ARTHREX IS SUED OVER INJURIES CAUSED BY TRACTION DEVICE, Thornton v. Arthrex Inc., 16 No. 2 Andrews Med. Devices Litig. Rep. 9, Andrews Medical Devices Litigation Reporter March 16, 2009
Arguing Patricia Thornton's personal injury suit should be dismissed because the assembly device (an Arthrex modular joint distractor) featured a state-of-the- art design approved by the Food and Drug Administration, medical device maker Arthrex Inc. has moved to dismiss the lawsuit filed after the Ohio health care worker was allegedly injured after she was struck by part of a traction assembly device hanging over a patient's bed.
The Law Lady. For more info, go to www.easleyappellate.com
Tuesday, March 17, 2009
Thursday, March 12, 2009
Two interesting criminal law decisions this week
Two interesting criminal law decisions from Monday, March 09, 2009, suggesting an effort to resolve the growing reexamination of the constitutionality of SORNA and death penalty
U.S. v. Ambert,(C.A.11 (Fla.))
SONRA's sex offender registration requirements did not violate due process.
The Eleventh Circuit has held that the Sex Offender Registration and Notification Act (SORNA) does not violate the rights of a defendant’s substantive or procedural due process rights, who was a convicted sex offender. SONRA causes a defendant's name to be placed on a sex offender registry without first a hearing to assess the risk of recidivism and current dangerousness, or with the opportunity to challenge his prior conviction. The Court applied the lower rational relation test of constitutionality and concluded that SONRA's restrictions were rationally related to Congress' legitimate goal in protecting the public from recidivist sex offenders. The publication of truthful information that was already available to the public did not infringe the fundamental constitutional rights of liberty and privacy.
Thompson v. McNeil ,(U.S.)
Criminal Justice - Execution following 31 years on death row as cruel and unusual punishment -- Certiorari Denied
The U.S. Supreme Court denied certiorari in a case in which the Eleventh Circuit Court of Appeals held that the execution of a murder defendant following a 31-year term on death row did not violate the Eighth Amendment's prohibition of cruel and unusual punishment. The Court issued three separate opinions concerning the denial. Justice Stevens issued a statement respecting the denial of the petition, but noted that in his earlier opinion concurring in the judgment in Baze v. Rees, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), he had suggested that the time had surely arrived for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces. The petition in this case, he said, set forth costs that merited consideration in any such study. He noted that, as the incarcerated awaited execution, the defendant was spending almost 24 hours a day in isolation in a 6-by 9-foot cell. Two death warrants had been signed against him and had been stayed only shortly before he was scheduled to be put to death. The Court concluded that, while the length of the defendant's confinement under sentence of death was extraordinary, the concerns his case raised were not unique. Today, condemned inmates await execution for an average of nearly 13 years. Furthermore, the reversible error rate in capital trials is staggering.
Justice Breyer strongly dissented from the denial of certiorari. He noted Justice Thomas's suggestion, in his concurrence in the denial of certiorari, that the defendant could not now challenge the constitutionality of the delay because much of that delay had been his own fault, in that he had caused it by choosing to challenge the sentence. Justice Breyer responded to Justice Thomas’s analogy by suggesting that a defendant's decision to exercise his right to seek appellate review of his death sentence could not automatically waive a claim that the Eighth Amendment proscribed a delay of more than 30 years. The delay was partly caused by the sentencing judge's failure to allow the presentation and jury consideration of nonstatutory mitigating circumstances. At resentencing, the defendant presented substantial mitigating evidence, not previously presented, that suggested that he might be significantly less culpable than his codefendant, who did not receive the death penalty. Justice Breyer said that he referred to this evidence only to point out that it was fair, not unfair, to take account of the delay the State caused when it initially refused to allow him to present it at the punishment phase of his trial. It was the punishment, not the gruesome nature of the crime, which was at issue.
Justice Thomas concurred in the denial of certiorari. He rejected the proposition that a defendant could avail himself of the array of appellate and collateral procedures and then complain when his execution was delayed. The issue was not whether a death-row inmate's appeals waived any Eighth Amendment right, he reasoned; rather, it was whether the death-row inmate's litigation strategy, which delayed his execution, provided a justification for the invention of a new Eighth Amendment right. It did not, Justice Thomas said. Justice Thomas also disagreed with Justice Stevens that other aspects of the criminal justice system required a fresh examination of the costs and benefits of retaining the death penalty. He also said that Justice Stevens had altogether refused to take into consideration the gruesome nature of the crimes that legitimately lead States to authorize the death penalty and juries to impose it. The facts of this case, which involved the defendant and his codefendant torturing the victim until she died, illustrated the point. Justice Thomas said it was the crime, not the punishment imposed by the jury or the delay in the defendant's execution, that was unacceptably cruel. (Case below: Thompson v. Secretary for Dept. of Corrections, 517 F.3d 1279 (C.A.11-Fla. 2008).)
The Law Lady. For more info, go to www.easleyappellate.com
U.S. v. Ambert,(C.A.11 (Fla.))
SONRA's sex offender registration requirements did not violate due process.
The Eleventh Circuit has held that the Sex Offender Registration and Notification Act (SORNA) does not violate the rights of a defendant’s substantive or procedural due process rights, who was a convicted sex offender. SONRA causes a defendant's name to be placed on a sex offender registry without first a hearing to assess the risk of recidivism and current dangerousness, or with the opportunity to challenge his prior conviction. The Court applied the lower rational relation test of constitutionality and concluded that SONRA's restrictions were rationally related to Congress' legitimate goal in protecting the public from recidivist sex offenders. The publication of truthful information that was already available to the public did not infringe the fundamental constitutional rights of liberty and privacy.
Thompson v. McNeil ,(U.S.)
Criminal Justice - Execution following 31 years on death row as cruel and unusual punishment -- Certiorari Denied
The U.S. Supreme Court denied certiorari in a case in which the Eleventh Circuit Court of Appeals held that the execution of a murder defendant following a 31-year term on death row did not violate the Eighth Amendment's prohibition of cruel and unusual punishment. The Court issued three separate opinions concerning the denial. Justice Stevens issued a statement respecting the denial of the petition, but noted that in his earlier opinion concurring in the judgment in Baze v. Rees, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), he had suggested that the time had surely arrived for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces. The petition in this case, he said, set forth costs that merited consideration in any such study. He noted that, as the incarcerated awaited execution, the defendant was spending almost 24 hours a day in isolation in a 6-by 9-foot cell. Two death warrants had been signed against him and had been stayed only shortly before he was scheduled to be put to death. The Court concluded that, while the length of the defendant's confinement under sentence of death was extraordinary, the concerns his case raised were not unique. Today, condemned inmates await execution for an average of nearly 13 years. Furthermore, the reversible error rate in capital trials is staggering.
Justice Breyer strongly dissented from the denial of certiorari. He noted Justice Thomas's suggestion, in his concurrence in the denial of certiorari, that the defendant could not now challenge the constitutionality of the delay because much of that delay had been his own fault, in that he had caused it by choosing to challenge the sentence. Justice Breyer responded to Justice Thomas’s analogy by suggesting that a defendant's decision to exercise his right to seek appellate review of his death sentence could not automatically waive a claim that the Eighth Amendment proscribed a delay of more than 30 years. The delay was partly caused by the sentencing judge's failure to allow the presentation and jury consideration of nonstatutory mitigating circumstances. At resentencing, the defendant presented substantial mitigating evidence, not previously presented, that suggested that he might be significantly less culpable than his codefendant, who did not receive the death penalty. Justice Breyer said that he referred to this evidence only to point out that it was fair, not unfair, to take account of the delay the State caused when it initially refused to allow him to present it at the punishment phase of his trial. It was the punishment, not the gruesome nature of the crime, which was at issue.
Justice Thomas concurred in the denial of certiorari. He rejected the proposition that a defendant could avail himself of the array of appellate and collateral procedures and then complain when his execution was delayed. The issue was not whether a death-row inmate's appeals waived any Eighth Amendment right, he reasoned; rather, it was whether the death-row inmate's litigation strategy, which delayed his execution, provided a justification for the invention of a new Eighth Amendment right. It did not, Justice Thomas said. Justice Thomas also disagreed with Justice Stevens that other aspects of the criminal justice system required a fresh examination of the costs and benefits of retaining the death penalty. He also said that Justice Stevens had altogether refused to take into consideration the gruesome nature of the crimes that legitimately lead States to authorize the death penalty and juries to impose it. The facts of this case, which involved the defendant and his codefendant torturing the victim until she died, illustrated the point. Justice Thomas said it was the crime, not the punishment imposed by the jury or the delay in the defendant's execution, that was unacceptably cruel. (Case below: Thompson v. Secretary for Dept. of Corrections, 517 F.3d 1279 (C.A.11-Fla. 2008).)
The Law Lady. For more info, go to www.easleyappellate.com
Wednesday, March 11, 2009
A “bandeja paisa”: recent trends in insurance law, rising litigation against brokers and a new Florida Bill that exempts certain parts of claims files
Insurance Broker Liability To Clients: Two Recent Multimillion-Dollar Cases May Signal A Growing Trend Toward Broker Liability, Geoff Fallon, 4 No. 21 Andrews Insurance Bad Faith Litig. Rep. 8, Andrews Insurance Bad Faith Litigation Reporter February 24, 2009
Geoff Fallon, a senior vice president of Risk Audit LLC, discusses two recent verdicts in favor of insureds against their brokers and the implications for broker liability. In the fourth quarter of 2008 two jury trials resulted in judgments of $24 million against Aon Corp. and $48.5 million against Marsh USA Inc., the nation's two largest insurance brokers. In both cases the insureds, i.e., the brokers' clients, sued their brokers after arbitrations with the insurance carriers found no coverage.
Claim against agent unrelated to coverage, ind. Fed. Judge says, Biernacki v. State Farm, 4 No. 21 Andrews Insurance Bad Faith Litig. Rep. 4, Andrews Insurance Bad Faith Litigation Reporter February 24, 2009
An Indiana federal judge has refused to dismiss a misrepresentation claim against an insurance agent but sent the case back to state court because the presence of the agent as a defendant defeats diversity jurisdiction. In 1988, the opinion says, Barbara and Leslie Biernacki bought a State Farm policy from agent Mick Gapen. The policy was in force when a fire caused more than $70,000 in damage to their home in Crown Point, Ind., on Sept. 3, 2007.When State Farm denied coverage, the Biernackis sued the agent.
New Orleans Doctor Covered For Shutdown Caused By Katrina, Yount v. Lafayette Ins. Co., 4 No. 22 Andrews Insurance Bad Faith Litig. Rep. 4, Andrews Insurance Bad Faith Litigation Reporter March 10, 2009
A Louisiana appeals court upheld a $70,000 award for a doctor forced out of her office suite by Hurricane Katrina, finding that she was entitled to lost income under her business-interruption policy. The 4th Circuit Court of Appeal said the interruption of Dr. Beverly Yount's practice was caused by damage from wind and rain, not floodwater, and thus covered by the policy.However, the court upheld a directed verdict in the insurer's favor on Yount's claim for statutory bad-faith penalties.
Civil Procedure, Class Actions, Commercial Law, Consumer Protection Law, Insurance Law Troyk v. Farmers Group, Inc. , California Case No. D049983, March 10, 2009
In a class action suit against Farmers Insurance, grant of plaintiff's motion for summary judgment is reversed where plaintiff did not carry his burden to show there is no triable issue of fact regarding the element of causation for his standing under the Business and Professions Code to prosecute the Unfair Competition Law cause of action on behalf of the class members. Defendant violated the Insurance Code's disclosure requirement, as the term "premium" includes a service charge imposed for the payment in full of the stated premium for policy's one-month term, which was not disclosed in the policy.
2009 Florida House Bill No. 961 111th Regular Session (SUMMARY - NETSCAN) Pub. Rec./Florida Insurance Guaranty Association; Provides exemption from public records requirements for specified claims files, medical records that are part of claims file, information relating to medical condition or medical status of claimant, & records pertaining to matters reasonably encompassed in privileged attorney-client communications of Florida Insurance Guaranty Association; provides for limited duration of exemption for claims files, etc. EFFECTIVE DATE: 07/01/2009 2009 FL H.B. 961 (NS)
Insurer May Rescind Life Policy After Discovering Untruths, Northwestern Mut. Life Ins. Co. v. Gil, 4 No. 21 Andrews Insurance Bad Faith Litig. Rep. 1, Andrews Insurance Bad Faith Litigation Reporter February 24, 2009
A federal judge in Connecticut has allowed an insurer that allegedly discovered numerous false statements on a life insurance application to rescind a murder victim's $15 million policy. The decision means the widow's counterclaims, including one for bad faith, were dismissed, and she will collect nothing under the policy.According to the opinion, Northwestern Mutual Life Insurance Co. issued a $15 million life insurance policy to Andrew Kissel. Kissel had a history of mental illness.
The Law Lady. For more info, go to www.easleyappellate.com
Geoff Fallon, a senior vice president of Risk Audit LLC, discusses two recent verdicts in favor of insureds against their brokers and the implications for broker liability. In the fourth quarter of 2008 two jury trials resulted in judgments of $24 million against Aon Corp. and $48.5 million against Marsh USA Inc., the nation's two largest insurance brokers. In both cases the insureds, i.e., the brokers' clients, sued their brokers after arbitrations with the insurance carriers found no coverage.
Claim against agent unrelated to coverage, ind. Fed. Judge says, Biernacki v. State Farm, 4 No. 21 Andrews Insurance Bad Faith Litig. Rep. 4, Andrews Insurance Bad Faith Litigation Reporter February 24, 2009
An Indiana federal judge has refused to dismiss a misrepresentation claim against an insurance agent but sent the case back to state court because the presence of the agent as a defendant defeats diversity jurisdiction. In 1988, the opinion says, Barbara and Leslie Biernacki bought a State Farm policy from agent Mick Gapen. The policy was in force when a fire caused more than $70,000 in damage to their home in Crown Point, Ind., on Sept. 3, 2007.When State Farm denied coverage, the Biernackis sued the agent.
New Orleans Doctor Covered For Shutdown Caused By Katrina, Yount v. Lafayette Ins. Co., 4 No. 22 Andrews Insurance Bad Faith Litig. Rep. 4, Andrews Insurance Bad Faith Litigation Reporter March 10, 2009
A Louisiana appeals court upheld a $70,000 award for a doctor forced out of her office suite by Hurricane Katrina, finding that she was entitled to lost income under her business-interruption policy. The 4th Circuit Court of Appeal said the interruption of Dr. Beverly Yount's practice was caused by damage from wind and rain, not floodwater, and thus covered by the policy.However, the court upheld a directed verdict in the insurer's favor on Yount's claim for statutory bad-faith penalties.
Civil Procedure, Class Actions, Commercial Law, Consumer Protection Law, Insurance Law Troyk v. Farmers Group, Inc. , California Case No. D049983, March 10, 2009
In a class action suit against Farmers Insurance, grant of plaintiff's motion for summary judgment is reversed where plaintiff did not carry his burden to show there is no triable issue of fact regarding the element of causation for his standing under the Business and Professions Code to prosecute the Unfair Competition Law cause of action on behalf of the class members. Defendant violated the Insurance Code's disclosure requirement, as the term "premium" includes a service charge imposed for the payment in full of the stated premium for policy's one-month term, which was not disclosed in the policy.
2009 Florida House Bill No. 961 111th Regular Session (SUMMARY - NETSCAN) Pub. Rec./Florida Insurance Guaranty Association; Provides exemption from public records requirements for specified claims files, medical records that are part of claims file, information relating to medical condition or medical status of claimant, & records pertaining to matters reasonably encompassed in privileged attorney-client communications of Florida Insurance Guaranty Association; provides for limited duration of exemption for claims files, etc. EFFECTIVE DATE: 07/01/2009 2009 FL H.B. 961 (NS)
Insurer May Rescind Life Policy After Discovering Untruths, Northwestern Mut. Life Ins. Co. v. Gil, 4 No. 21 Andrews Insurance Bad Faith Litig. Rep. 1, Andrews Insurance Bad Faith Litigation Reporter February 24, 2009
A federal judge in Connecticut has allowed an insurer that allegedly discovered numerous false statements on a life insurance application to rescind a murder victim's $15 million policy. The decision means the widow's counterclaims, including one for bad faith, were dismissed, and she will collect nothing under the policy.According to the opinion, Northwestern Mutual Life Insurance Co. issued a $15 million life insurance policy to Andrew Kissel. Kissel had a history of mental illness.
The Law Lady. For more info, go to www.easleyappellate.com
Monday, February 9, 2009
Rule 1.540(b) motions and why their subparts and timing can be like cinnamon swirls
Rule 1.540(b) motions to set aside judgments can lead you full circle. An order granting a Rule 1.540 motion is subject to a gross abuse of discretion standard of review. See North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Collins v. Collins, 519 So. 2d 729 (Fla. 2d DCA 1988); DeRuyter v. State, 521 So. 2d 135 (Fla. 5th DCA 1988).
A greater showing of an abuse of discretion is required to reverse an order granting a Rule 1.540 motion than is required to reverse an order denying a Rule 1.540 motion. See Geer v. Jacobsen, 880 So. 2d 717 (Fla. 2d DCA 2004); Lloyd's Underwriter's at London v. Ruby, Inc., 801 So. 2d 138 (Fla. 4th DCA 2001); Lehner v. Durso, 816 So. 2d 1171 (Fla. 4th DCA 2002); Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984); Jackson v. Jackson, 542 So. 2d 481 (Fla. 2d DCA 1989).
Rule 1.540(b) lists five categories of substantive grounds, any one of which is available to support an order granting relief from a judgment:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. --On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) that the judgment or decree is void; or
(5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.
A motion for relief from a judgment may be granted under Fla. R. Civ. P. 1.540(b)(5) on three grounds: that the debt on which the judgment is based has been satisfied or discharged (See Barnett Bank v. American Medical Express Corp., 671 So. 2d 819 (Fla. 3d DCA 1996).), the decree or judgment on which it was based has been reversed (See Riley v. Gustinger, 252 So. 2d 583 (Fla. 3d DCA 1971)), or the ''prospective application'' of the judgment is now inequitable. See Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982) (after plaintiff won the right to specific performance but did not comply with the judgment the court granted the defendant's motion to vacate the judgment and restore the parties to their prejudgment positions).
The Third District Court of Appeal explained the reason for the rule in Cutler Ridge Corp. v. Green Springs, Inc., 249 So. 2d 91, 93 (Fla. 3d DCA 1971): "[t]he general purpose of the rule [1.540(b)] is to enable the court to grant relief against an unjust decree, and should be liberally construed to advance such remedy." See First Union Nat'l Bank v. Yost, 622 So. 2d 111 (Fla. 1st DCA 1993) (filing a notice of appeal tolled the one year period and, although earlier motions were deemed abandoned by filing the notice, the time for filing new motions under Fla. R. Civ. P. 1.540 recommenced when the appeal became final).
As to the timing of a Rule 1.540(b) motion, motions under subsections (4) and (5) only require that they “shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken, except that there shall be no time limit for motions based on fraudulent financial affidavits in marital cases.” But litigants can sometimes get those deadlines confused and the confusion only goes away after reading, and rereading the rule in its entirety. Despite the rule’s ambiguity, it is a vital tool to setting aside judgments that have errors or are plainly unjust.
The Law Lady. For more info, go to www.easleyappellate.com
A greater showing of an abuse of discretion is required to reverse an order granting a Rule 1.540 motion than is required to reverse an order denying a Rule 1.540 motion. See Geer v. Jacobsen, 880 So. 2d 717 (Fla. 2d DCA 2004); Lloyd's Underwriter's at London v. Ruby, Inc., 801 So. 2d 138 (Fla. 4th DCA 2001); Lehner v. Durso, 816 So. 2d 1171 (Fla. 4th DCA 2002); Kapetanopoulos v. Herbert, 449 So. 2d 947 (Fla. 2d DCA 1984); Jackson v. Jackson, 542 So. 2d 481 (Fla. 2d DCA 1989).
Rule 1.540(b) lists five categories of substantive grounds, any one of which is available to support an order granting relief from a judgment:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. --On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) that the judgment or decree is void; or
(5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.
A motion for relief from a judgment may be granted under Fla. R. Civ. P. 1.540(b)(5) on three grounds: that the debt on which the judgment is based has been satisfied or discharged (See Barnett Bank v. American Medical Express Corp., 671 So. 2d 819 (Fla. 3d DCA 1996).), the decree or judgment on which it was based has been reversed (See Riley v. Gustinger, 252 So. 2d 583 (Fla. 3d DCA 1971)), or the ''prospective application'' of the judgment is now inequitable. See Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982) (after plaintiff won the right to specific performance but did not comply with the judgment the court granted the defendant's motion to vacate the judgment and restore the parties to their prejudgment positions).
The Third District Court of Appeal explained the reason for the rule in Cutler Ridge Corp. v. Green Springs, Inc., 249 So. 2d 91, 93 (Fla. 3d DCA 1971): "[t]he general purpose of the rule [1.540(b)] is to enable the court to grant relief against an unjust decree, and should be liberally construed to advance such remedy." See First Union Nat'l Bank v. Yost, 622 So. 2d 111 (Fla. 1st DCA 1993) (filing a notice of appeal tolled the one year period and, although earlier motions were deemed abandoned by filing the notice, the time for filing new motions under Fla. R. Civ. P. 1.540 recommenced when the appeal became final).
As to the timing of a Rule 1.540(b) motion, motions under subsections (4) and (5) only require that they “shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken, except that there shall be no time limit for motions based on fraudulent financial affidavits in marital cases.” But litigants can sometimes get those deadlines confused and the confusion only goes away after reading, and rereading the rule in its entirety. Despite the rule’s ambiguity, it is a vital tool to setting aside judgments that have errors or are plainly unjust.
The Law Lady. For more info, go to www.easleyappellate.com
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