Hospitals, wrongful death, declaratory judgments and business over fresh salad greens

Declaratory judgment -- Insurance -- Liability -- Coverage -- Liability policy at issue was claims made and reported policy, not an occurrence policy -- Defendant whose consumption of dietary supplement formulated by insured caused liver problems which necessitated a liver transplant and subsequent medical treatment suffered an ongoing bodily injury that spanned both periods in Retroactive Date Endorsement of liability policy at issue, entitling her to $1 million policy limits in effect during first claims period and $4 million policy limits in effect during subsequent claims period
Reported at 22 Fla. L. Weekly Fed. D110a

Torts -- Negligence -- Action by stunt driver who was injured during performance when dip in dirt right in front of ramp caused his car to lose speed and to fall short of catch cars, alleging that the event producer's crew was grossly negligent in failing to ensure that the ramp approach was properly smoothed and that person in charge of agenda was negligent for refusing to adjust time schedule to allow enough time to prepare ramp approach before plaintiff's stunt -- Release -- Although contract between the parties contained provision releasing defendant from liability for any claim arising out of stunt show, whether caused by negligence “or otherwise, and this language has been interpreted as including gross negligence, the release barring recovery for gross negligence is unenforceable under circumstances because of Florida statute prohibiting the operator of a closed-course motorsports facility to disclaim liability for gross negligence -- Football stadium at which stunt was performed was equivalent of closed-course motorsports facility under facts of case -- Whether defendants' conduct amounted to gross negligence is question for jury in this case
Reported at 22 Fla. L. Weekly Fed. D109a

Venue -- Torts -- Interference with business relationship -- Venue is improper in Southern District of Florida where plaintiff failed to allege that defendants' tortious conduct, or any acts with a close nexus to tortious conduct, occurred within Southern District -- Proper focus of venue inquiry is on relevant activities of defendants, not plaintiff's conduct -- Case transferred to Northern District of Georgia. the judicial district in which all defendants reside
Reported at 22 Fla. L. Weekly Fed. D113a

Criminal law -- Search and seizure -- Prescription records -- Error to grant motion to suppress records obtained from a pharmacy by an investigating law enforcement officer -- Section 893.07(4) requires pharmacies to make controlled substance records available to law enforcement officers and does not require pharmacies to notify the patient or withhold such records until a warrant is presented -- Federal Health Insurance Portability and Accountability Act does not constitute legal basis for suppression of records at issue -- Privacy provision of Florida Constitution does not support suppression of records in this case
Reported at 34 Fla. L. Weekly D2466a

Administrative law -- Florida Housing Finance Corporation -- Rejection of application for funding to build affordable housing -- Florida Housing Finance Corporation impaired the fairness of the proceedings before hearing officer by failing to index an order in a previous case and post it to the public where the previous decision was relevant and could have changed the outcome of the case had applicant and the hearing officer had benefit of the decision
Reported at 34 Fla. L. Weekly D2469a

Contracts -- Damages -- Defendant's breach of contract by failing to have plaintiff named as additional insured on policies obtained by defendant, with result that plaintiff had to settle personal injury action against it after defendant's insurer refused to defend -- Where plaintiff had filed unsuccessful declaratory judgment action seeking declaration that defendant's insurer had duty to defend and provide coverage to plaintiff, trial court did not err in allowing jury in breach of contract action to award attorney's fees and costs incurred by plaintiff in declaratory judgment action -- Prejudgment interest -- Trial court erred in failing to award prejudgment interest on entire jury verdict, including portions attributable to attorney's fees and costs incurred in personal injury action against plaintiff and declaratory judgment action
Reported at 34 Fla. L. Weekly D2467b

Workers' compensation -- Contribution -- Limitation of actions -- Carrier which was at risk at time of claimant's second accident was not entitled to contribution from carrier at risk at time of first accident for benefits second carrier voluntarily paid for care and treatment which was ultimately found to be wholly related to first accident where statute of limitations expired on first accident by the time of the occurrence of second accident -- Second carrier could not revive statute of limitations by merely providing benefits
Reported at 34 Fla. L. Weekly D2465a

Wrongful death -- Hospitals -- Action against hospital alleging that hospital had legal duty to decedent that was breached by its negligent hiring and supervision of surgical nurse employed by hospital who murdered decedent with an injection of hazardous controlled drugs -- Error to dismiss complaint for failure to allege a legal duty owed to decedent by defendant -- Allegations that defendant knew or should have known of the risk of unsupervised release of hazardous controlled drugs under its control, that a reasonable medical care provider like defendant would understand that the public would be exposed to risk of harm unless procedures and actions were undertaken to guard against the risk of unauthorized removal of hazardous drugs from its control without a doctor's prescription, and that the death of decedent was a foreseeable consequence of defendant's failure to use reasonable care in the hiring and supervision of nurse, were sufficient to establish a duty of care
Reported at 34 Fla. L. Weekly D2470b

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Internet law

Judge Rules Web Commenter Will Be Unmasked to Mom of Criticized Teen
From ABA Journal Weekly, Posted Nov 9, 2009, 04:00 pm CST By Martha Neil

An Illinois judge has decided that an anonymous commenter on a newspaper website will be unmasked, even though the mother of a teen about whom "Hipcheck16" allegedly made "deeply disturbing" comments hasn't yet decided whether to sue over the posting.

The mother, Lisa Stone, is a trustee of Buffalo Grove in suburban Chicago. The comments on the Daily Herald's website were made just before an April 7 election in which she won a seat, reports the Chicago Tribune.

Stone calls the posted comments about her 15-year-old son "deeply disturbing," but they aren't specifically described in the article.

Attorney Michael Furling, who represents Hipcheck16, says he will talk to his client about whether to appeal today's ruling by Cook County Circuit Judge Jeffrey Lawrence.

Although Lawrence ruled that Hipcheck16's identity must be revealed to Stone—and to a process server, should she decide to sue—he said it should remain confidential to others, according to the newspaper.


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Home Court Showdown at the Supreme Court

Battle over wage-and-hour action against Hertz is all about location, location, location

a post by Marcia Coyle in The National Law Journal
November 10, 2009

"The auto rental giant Hertz is incorporated in Delaware, has its headquarters in New Jersey and does its biggest volume of business in California. So where is Hertz's "principal place of business?"

The answer depends on which federal appellate court is asking the question. During the past 51 years, federal courts have used a hodgepodge of tests to determine a corporation's principal place of business. The U.S. Supreme Court today, for the first time, will consider what is the correct test in Hertz Corp. v. Friend, a case involving Hertz employees who claim the company violated California's wage-and-hour laws.

What the Supreme Court decides, in effect, will determine the battlefields on which class action and other litigation involving multistate corporations will be fought. Will it be what corporations perceive to be the friendlier forum of the federal courts or the plaintiff-sympathetic state courts?

Hertz, backed by such national business organizations as the U.S. Chamber of Commerce, is urging the justices to decide that a corporation's principal place of business for determining federal court jurisdiction is the corporation's headquarters. The "headquarters" approach offers a bright-line, certain and efficient way of determining a corporation's citizenship, according to Hertz high court counsel, Sri Srinivasan, a partner in the Washington office of O'Melveny & Myers. Under that approach, Hertz's principal place of business would be New Jersey and it could fight the wage-and-hour claims in federal court because, under the federal diversity jurisdiction statute, its New Jersey citizenship is different from the citizenship of the California employees suing it.

But that test ignores the realities of how multistate corporations do business, countered Robert Stein III, a partner in the Santa Ana, Calif., office of Adorno & Yoss, whose co-counsel, Todd Schneider of San Francisco's Schneider Wallace Cottrell Brayton Konecky, will argue for the Hertz employees.

Stein and his supporters argue that it makes more sense to look at whether any single state contains a substantial predominance of the corporation's business activity -- including facilities, employees and revenues. The 9th U.S. Circuit Court of Appeals took that approach in October 2008, decided Hertz's principal place of business was California, and sent the wage-and-hour lawsuit back to state court.

"It's very, very important for the Supreme Court to resolve this," said A. Benjamin Spencer of Washington and Lee University School of Law. "Today you can have a district court in New Jersey, knowing Hertz is headquartered there, that would be inclined to say New Jersey is Hertz's principal place of business. And, you have a district court in California saying it's California. Analytically, you can't have that. It can't be both."

BRAIN VERSUS BRAWN

Before 1958, the federal diversity statute said a corporation was only a citizen of its state of incorporation. But Congress found that some corporations engaging in local business were able to circumvent their local courts and get into federal court by getting out-of-state charters. Its evidence: more cases involving state-law claims and parties having the same citizenship were burdening the federal courts.

Congress amended the diversity statute to state that a corporation was a citizen of its state of incorporation and of the state where it had its "principal place of business." Congress wanted to reduce the federal courts' caseload and to preserve the original purpose of diversity jurisdiction, which was to protect true foreign corporations from the biases of local courts and juries. Congress believed a corporation was unlikely to face prejudice in a state where it had its principal place of business.

Congress, however, did not define principal place of business, and so the federal courts filled that void with varying and conflicting approaches.

The 5th, 6th, 8th, 10th and 11th circuits use a "total activity" test that examines the company's purposes, type of business and legal site of its operations. The 1st, 2nd and 4th circuits apply a variation of that test, and the 3rd Circuit looks for the "center of corporate activity." The 9th Circuit compares the states in which the corporation operates to determine where it has a "substantial predominance" of its operations.

The 7th Circuit is the only circuit that uses the "nerve center" test, explaining in one decision, "[W]e look for the corporation's brain, and ordinarily find it where the corporation has its headquarters." This circuit finds the location from which the company's chief executives control and direct activities at all other corporate sites."

More

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Explanation of benefits, valid medical reports and spicey cornbread

Insurance -- Personal injury protection -- Explanation of benefits -- Circuit court appellate division departed from essential requirements of law in affirming county court judgment finding that an insured has a private cause of action against a PIP insurer who fails to provide its insured an itemized specification of each item the insurer has reduced, omitted, or declined to pay within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount -- There is neither a requirement nor a deadline for a PIP insurer to respond to a request for payment -- A response is required from the insurer only when insurer either pays a portion of a claim or rejects a claim -- Insured has no private right of action against insurer for insurer's failure to provide an explanation of benefits to insured or insured's assignee in timely manner -- Appeals -- Case falls within limited category of cases in which district court is authorized to exercise discretion to review a circuit court appellate division per curiam affirmance of county court order or judgment
Reported at 34 Fla. L. Weekly D2268a

United Auto. Ins. Co. v. Santa Fe Medical Center ,(Fla.App. 3 Dist.)
Insurance - Insurer was not required to obtain valid medical report before denying a PIP claim.
The Florida District Court of Appeal has held that the subsection of the personal injury protection (PIP) statute providing that an insurer may not withdraw payment without the consent of the injured person, unless the insurer first obtains a valid report by another physician that the treatment was not reasonable, related, or necessary, does not require the insurer to obtain a valid medical report to deny payment of a PIP claim. Rather, this statute only requires that a valid report be obtained when further PIP benefits are withdrawn without the consent of the injured person. In so holding, the District Court of Appeal receded from United Auto. Ins. Co. v. Bermudez, to the extent that decision suggested that the medical report requirement applied to the denial of PIP benefits.

This decision may not yet be released for publication.

Insurance -- Coverage -- Waiver and estoppel -- Questions certified to Georgia Supreme Court: 1) Does an insurer effectively reserve its right to deny coverage if it informs the insured that it does “not see coverage,” after the insured had received a written reservation of rights from the insurer's sister company in a similar lawsuit in another jurisdiction, or is a written or more unequivocal reservation of rights required? 2) When an insurer assumes and conducts an initial defense without notifying the insured that it is doing so with a reservation of rights, is the insurer estopped from asserting the defense of noncoverage only if the insured can show prejudice, or is prejudice conclusively presumed? 3) If the insured must show prejudice, do the facts and circumstances of this case show it?
Reported at 22 Fla. L. Weekly Fed. C233a

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