Archive for the ‘Florida Law Updates’ category

Friday Florida Law Update- An Episode of Legal Realism

November 4, 2011


Since I have been so bad to the fans of late, today’s blog is in reality a “two-fer,” as we will have a mini-retro pop review down below!  Today’s case involves a classic case of “legal realism,” a concept I learned and latched onto in my first year “Legal Process” class taught by the great Christopher Yoo at Vanderbilt Law School, who once scolded me in the school parking lot one gusty Friday morning on the way to his class for cutting the Torts class that came immediately before his.  Professor Yoo did not appreciate my response of, “Considering how hung over I am, you should be proud that I’m not cutting YOUR class!”   Fortunately though, he did not call on me that day. 

Ahem, so where were we?  Ah yes, Legal Realism.  This concept stands for when a court considers the facts, arrives at the result it WANTS to reach first, then finds a legal hook for doing so. 

In Georges v. Department of Health, 2011 WL 5169407 (Fla. 2d DCA Nov. 2, 2011), Florida’s Second Circuit Court of Appeals reversed a Board of Nursing decision to revoke a nurse’s license and assess $15,703 in costs against a nurse for stealing $10 from a patient.  The Board of Nursing had reversed the recommended finding of the assigned administrative law judge, which was a $250 fine and probation.  On appeal, the Second DCA cited to Florida’s Administrative Code regulations, which called for a maximum $150 fine, reprimand and suspension followed by probation for a first offense absent proof of aggravating factors.  The appellate court found that Nurse Georges was denied her “due process” rights by having such a lofty fine assessed plus revocation of her license without proof of such “aggravating” factors. 

What exactly are aggravating factors in addition to stealing from a patient?  Hiding their pants so they have to go out in the cold in one of those backless hospital gowns?  Putting a laxative in their Jello? 

I submit that the Court simply said to itself, “You know what?  $15,000 and a lifetime ban from the profession over a $10 ‘mistake’ is a bit harsh.  I think this woman’s learned her lesson!”, and figured out a way to reverse it. 

On another note, any case involving a nurse will likely make me dig for a good picture of Nurse Ratched (see above) from the movie, One Flew Over the Cuckoo’s Nest, Milos Forman’s oscar-winning adaptation of the Ken Kesey novel.  Depending on the mood you’re in, Cuckoo’s Nest can range from the funniest movie you’ve ever seen to the creepiest movie you’ve ever seen to the most depressing movie you’ve ever seen.  If you have never seen it, make it a priority. 

Jack Nicholson plays a walking misdemeanor pretending to be crazy to stay in the otherwise cozy confines of a mental institution as opposed to serving jail time while getting under the skin of the entire hospital staff, most notably the hard Nurse Ratched, played by Louise Fletcher.  Jack Nicholson is the only actor who of our lifetime who could have pulled off this role except for maybe Robert DeNiro, though DeNiro would have spent 2 years studying for the role and probably would have oversold it.  My first watch of this movie came while hanging with my brother Neil, and we were both howling with non-stop laughter for the first hour before things got a little more serious. 

Friday Florida Law Update- Contract Damages

October 21, 2011

TGIF all, and what a gorgeous Friday it is for South Floridians!  Today we discuss a case involving damages for a breach of a commercial contract, but more importantly, a case which kicks off with a snide but humorous comment from the appellate court. 

In Net Results, Inc v. Del Monte Fresh Produce Co., 2011 WL 4949872 (Fla. 3d DCA Oct. 19, 2011), Net Results sued over Del Monte’s wrongful termination of a telecommunications consulting contract.  Under the contract, Net Results was required to examine Del Monte’s telecommunications expenses and scope out means to save money.  Del Monte terminated the agreement on the belief that Net Results had not fully performed under the contract.  At the trial court level, a jury found that Del Monte wrongfully terminated the agreement, and awarded damages of $15.7 million. 

In reversing and remanding the case on the issue of damages only, the Third DCA opened with the comment that “[t]his is a business damages case in which the computation of Net Results’ ‘benefit of the bargain’ losses require grade-school arithmetic rather than a ‘damages model’ long on assumptions and short on facts.” 

The overly complex damage calculation attempted indeed extrapolated significant hypothetical performance in the future but overlooked simple issues like Net Results’ operating expenses for performance under the contract.  In remanding the case for a new trial on damages only, the Third DCA emphasized the concept of “benefit of the bargain” damages, which essentially places the parties back in the position they would have been in if Del Monte had not repudiated the agreement, including all operating expenses.



Friday Florida Law Update- Read the Fine Print!

October 14, 2011

TGIF all, and welcome back to the Friday Florida Law Updates portion of the blog!  I’m not gonna lie, about 80% of the fun in this blog is finding a good photo.  Today, we have a case about a poor judgment debtor having his wages garnished.  I punch “garnishment” into the Google image search, and voila!  Look at that beauty above!

Today we look at USAmeribank v. Klepal, 2011 WL 4809107 (Fla. 2d DCA Oct. 12, 2011).  In Klepal, an individual obtained a $43,000 bank loan apparently unsecured by any property.  The promissory note, among what I am sure was about 50 other provisions, included a statement that the borrower consents to the issuance of a continuing writ of garnishment or attachment against my disposable earnings . . . in order to satisfy, in whole or in part, any money judgment entered in favor of the Bank.” 

A writ of garnishment is a tool by which a creditor can obtain a court order requiring a party owing money to the debtor, such as a bank where the debtor holds money or, in this case, the debtor’s employer, to furnish the funds directly to the creditor. 

Sure enough, this $43,000 loan resulted in a $51,000 judgment for the bank after Klepal defaulted.  In its attempt to collect on the judgment, the bank attempted to have a continuing writ of garnishment issued on Klepal’s employer.  At the trial court level, Klepal had the writ dissolved due to the head of family exception to Florida’s garnishment statute, which protects a head of family’s wages from garnishment.  (Florida is a renowned debtor-friendly state). 

On appeal, the Second DCA held that the provision of the note agreeing to a continuing writ of garnishment on Klepal’s disposable earnings constituted a valid and conspicuous waiver of the “head of household” exemption.

The moral, as always, is to READ THE FINE PRINT when signing any significant contract!  


Friday Florida Law Update- Seaworthy Despite Negligent Medical Staff?

September 30, 2011

Hello all, TGIF, and welcome back for your Friday Florida Law Update! Today we look at a tragic incident that occurred aboard a Royal Caribbean cruise ship. In Fleuras v. Royal Caribbean Cruises, Ltd., 2011 WL 4467347 (Fla. 3d DCA Sept. 28, 2011), a deceased woman’s estate brought a claim against the cruise line, alleging that one of its ships was “unseaworthy” due to the negligence of its medical staff.

The sad facts of the case were that a ship photographer, Diana Fleuras, complained to medical personnel multiple times over the course of several days relating to abdominal and back pain.  In the course of treatment, she was diagnosed as pregnant, and days later underwent an abortion procedure from a physician in the Virgin Islands.  Upon her return to the ship after the abortion, she continued to complain of abdominal pains and repeatedly sought medical attention.  She was prescribed multiple medications by the ship’s medical staff.  One evening, while the ship was in port, Fleuras required emergency assistance.  An ambulance was summoned to the port, and Fleuras was transported to a hospital, where she subsequently passed away from complications due to her pregnancy — specifically, that she had an ectopic pregnancy (one where the embryo implants outside the uterine cavity).

Her estate sued Royal Caribbean, complaining that the ship was rendered unseaworthy by its negligent medical staff.  Specifically, Plaintiff alleged that the ship’s staff failed to adequately detect Fleuras’ ectopic pregnancy, failed to adequately document her symptoms, failed to provide sufficient history to the paramedics, failed to establish proper medical procedures or, alternatively, failed to follow them.

At the trial court level, the court granted summary judgment to Royal Caribbean on two grounds — 1) a single act of negligence by the medical staff was insufficient to deem a vessel as “unseaworthy,” and 2) a shipowner has no duty to establish procedures to govern medical emergencies.

On appeal, the Third District Court of Appeal affirmed in part and reversed in part.  Essentially, the Third DCA agreed with the two points above.  However, the appellate court ruled that summary judgment was premature for two reasons.  First, Plaintiff was entitled to further discovery to determine whether the medical staff was incompetent generally (which would qualify a vessel as unseaworthy) or just had a single act of negligence (which does not render a vessel unseaworthy).  Second, Plaintiff was entitled to further discovery as to whether the ship had indeed promulgated emergency procedures because, while an owner has no duty to promulgate such procedures, if indeed they do enact procedures, they must be followed.  This is also known as the “undertaker doctrine.”  You may not have a duty to do something, but if you undertake the duty, you must carry it out in a non-negligent manner.

Despite some of the draconian features of this ruling, keep in mind that this also has a lot more to do with Royal Caribbean’s deep pockets.  Plaintiff is also of course free to pursue the physician directly for redress.

Have a great weekend!!

Friday Florida Law Update- The Seatbelt Defense

August 19, 2011

TGIF all!  Before you get on home for the weekend, here is your Florida law update.  It was a tough week to find a water cooler case in Florida’s appellate courts, so my apologies in advance. 

The case involves the “seat belt defense,” which allows a defendant in a car accident case to shift blame to the plaintiff if the plaintiff was not using their seat belt at the time of the accident.  In Russell v. Beddow, 2011 WL 3558154 (Fla. 1st DCA August 15, 2011), Florida’s First District Court of Appeal reversed in part a verdict assigning 35% of the blame to Plaintiff Russell for failing to use her seat belt at the time of her rear end collision by the defendant.  The 35% assignment of fault diminished her damage claim by the same total.

On appeal, the First DCA held that Defendant did not meet her burden of proof on the seat belt defense, which in most cases requires the movant to prove, by expert testimony, that failure to use a seat belt was the cause of the injury complained of.  In this case, Plaintiff complained of a herniated disc.  The appellate court held that a lay jury is incapable of determining whether or not the plaintiff still would have sustained a herniated disc even if she had been wearing a seat belt. 

Assignment of fault is a huge issue, especially in a clear cut liability case such as this one (rear end collision).  It appears the court got this one right and it was surprising to see the defense go to trial without an expert on this issue.


DISCLAIMER:  This blog is written for entertainment purposes only and does not create an attorney-client relationship, nor does it constitute legal advice. 

Friday Florida Law Update

July 29, 2011

The photo above is dedicated to the fact that we are about to discuss Florida’s Proposal for Settlement statute for the umpteenth time!  I think soon I am going to approach local law schools about being an adjunct professor on this topic!

Ok, for you new fans, here’s a quick refresher.  The Proposal for Settlement is a statutory procedure allowing either party the chance to tender a written settlement offer that remains open for 30 days.   If the offeree does not accept the offer in 30 days, it expires, and if the matter proceeds to trial and the offeree does more than 25% worse at trial than they would have had they accepted the offer, the trial court is supposed to require the offeree to pay the offeror’s attorney’s fees from the date of the offer. 

As we have discussed at length, this seemingly simple statute has killed a lot of trees in legal opinions on it.  In today’s case of Andrews v. Frey, 2011 WL 3206882 (Fla. 5th DCA July 29, 2011), the Fifth DCA held that an offer made by one of two defendants which required, as a condition of settlement, that BOTH defendants be released, was valid under the circumstances.

In the case, a minor passenger was injured in a car accident.  The minor’s mother sued the driver of the vehicle for negligence, as well as the driver’s spouse (the minor’s father) vicariously as the owner of the vehicle.   (Under Florida’s dangerous instrumentality doctrine, the owner of a vehicle is liable for the negligence of the vehicle’s driver — think about that next time you lend someone your car keys!).  During discovery, the driver issued an Offer of Settlement to the minor and her mother on her own behalf only, but conditioned the offer on dismissal of both she AND the vicariously liable owner.

Plaintiffs rejected the offer and, predictably, underachieved at trial, causing the trial court to award fees to the defendants pursuant to the proposal for settlement. 

On appeal, the Fifth DCA affirmed the judgment, finding significance in the fact that 1) the omitted vehicle owner was only vicariously liable; and 2) the owner’s vicarious liability was undisputed.  In other words, the failure to include the owner in the offer should have had no effect on the strategical consideration by the offerees in considering the offer.

I never get tired of cases on this statute!

Hope to keep catching up on more posts that I owe you soon!  If we don’t get to it today, have a wonderful and safe weekend all!

Belated Friday Florida Law Update- Today’s Lunch Special: Roadkill Milanese

July 27, 2011

Hello all, and welcome back to your “I’m posting whenever I possibly can!” blog.   We’re woefully behind but determined to to work through it! 

We owe you a Florida law case and this one is great for water cooler fodder so here goes.  In Milanese v. City of Boca Raton, 2011 WL 2848628 (Fla. 4th DCA July 20, 2011), the Fourth District Court of Appeal reversed dismissal of a wrongful death claim against the City of Boca Raton after Decedent Milanese was released from custody and run over by a nearby train.  Milanese had been driving with a blood alcohol level of .24, three times Florida’s legal limit, even though his cousin had his own vehicle and was apparently not intoxicated.  Milanese was pulled over after he was spotted swerving badly and hitting curbs.  After he was pulled over and blew a .24, Milanese was detained and issued five traffic tickets, though police spared him a DUI charge.  He was released approximately 2 hours after he was detained and a cab was called for him.  Instead of waiting for the cab, the drunkard stumbled off and took a nap next to some train tracks.  You know the rest.

Milanese’s estate sued for wrongful death, claiming that the police placed Milanese in a “zone of risk” by releasing him instead of detaining him until his blood alcohol level came down. 

The trial court dismissed the case with prejudice for failure to state a claim.  On appeal, however, the Fourth DCA reversed.  The appellate court relied on a statute relating to the police’s duties in handling a suspect arrested for DUI, stating the circumstances under which the suspect may be released from custody (even though no DUI was issued in this case).  The Court did not declare Plaintiff victorious, but merely ruled that enough was presented to let the case proceed past the pleading stage. 

This case disgusts me on many levels, including how 1) an attorney could hear these facts and decide he wants to get behind suing the City;  but more importantly; 2) the growing lack of accountability in this society.  Here we have a drunk-off-his-ass idiot whose cousin lets him get behind the wheel cause they’re too selfish and lazy to scoop up the car the next day.  He gets pulled over, somehow is spared a DUI when he was driving so recklessly he easily would’ve killed anyone who would’ve been unfortunate enough to be in his way, is released after 2 hours and a cab is called for.  Somehow in there the police were negligent?  I guess the lesson for the cops next time is to throw the book at these morons from the beginning.



 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.