REINSURANCE

Advantage General Insurance Co., Ltd. v KILN/QBE International, ___ So. 2d ___, 34 Fla. L. Weekly D859 (Fla. 4/29/09)
Advantage, a foreign corporation, insured Air Sunshine, a Florida corporation, and then obtained reinsurance from certain Lloyds underwriters. While the policy was in effect, Advantage settled two wrongful death claims against Air Sunshine and then sought indemnification from Lloyds. Lloyds contended that Advantage was barred from bringing suit in Florida because Advantage was an unauthorized insurer. Advantage sued the underwriters in Florida, and the underwriters moved to dismiss because Advantage was not licensed to conduct business in the State of Florida. The trial court granted the underwriters’ motion to dismiss, Advantage appealed, and the Fourth District Court of Appeal reversed. Although Section 626.903, Florida Statutes, precludes unauthorized insurers from initiating and maintaining legal proceedings in the State of Florida, this statutory provision is designed to protect Florida insureds. In this case, Advantage did not sue its Florida insured; rather it sued in its own insurer. Therefore, the unauthorized insurer statute did not bar the action.

APPRAISAL

Federated National Insurance Co. v. Palenzuela, ___ So. 2d ___, 34 Fla. L. Weekly D873 (Fla. 3d DCA 4/29/09)
The trial court entered an order confirming an appraisal award in favor of a homeowner against his insurer. The order required the insurance company to pay the award within twenty days and reserved jurisdiction to enforce the award and resolve the homeowner’s claim for attorney’s fees. The Third District Court dismissed for lack of jurisdiction the insurance company’s appeal from the confirmation order. The district court held that the trial court did not enter a final, appealable order because the order lacked “the usual words that signal finality” and “an adjudication on the merits which effectuates a termination of the cause as between the parties directly affected” had not occurred.

LIFE INSURANCE

Jackson National Life Insurance Co. v. Lovallo, ___ So. ___, 34 Fla. L. Weekly D886 (Fla. 1st DCA 5/4/09)
Jackson issued a ten year renewable term life insurance policy to the husband. During the initial term, the husband’s marriage was dissolved. The dissolution decree arguably imbued the former wife with equitable ownership of the policy, and she notified Jackson of this development. Nevertheless, when the former husband instructed Jackson not to renew the policy, Jackson followed his directive. The former husband died after the policy lapsed, but the former wife claimed entitlement to the death benefit under the theory that, as the end of the original term approached, she was entitled to notice of the right to renew the policy. The trial court entered summary judgment for the former wife, and Jackson appealed. The First District Court of Appeal reversed because notice was not required by statute or the terms of the policy. The court distinguished policy renewals from cancellations for non-payment of premiums and noted that Section 627.4555, Florida Statutes (2008), which requires notice of nonpayment of life insurance premiums, took effect on October 1, 1997, but the policy involved in this case was issued in 1994. The court declined to decide whether the communications between the parties constituted a request for renewal or imposed upon Jackson a duty to seek clarification.

CHILD SUPPORT

Valdes v. Valdes, ___ So. 2d ___, 34 Fla. L. Weekly D798 (Fla. 1^st DCA 4/20/09

An award of child support was reversed because the trial court failed to articulate findings regarding the actual or adjusted income of the parties. The appellate court remanded for the calculation of child support according to statutory guidelines.

WORKER’S COMPENSATION IMMUNITY

C.W. Roberts Contracting, Inc. v. Couchens, ___ So. 2d ___, 34 Fla. L. Weekly D797 (Fla. 1^st DCA 4/20/09)

C.W. was hired as the general contractor to repave a landing strip at Egland Airforce Base, and C.W. hired Edge to remove the old asphalt from the base. The plaintiff’s husband was involved in a fatal accident while dumping a load of asphalt for Edge. C.W.’s contract with Edge required Edge to maintain workers’ compensation coverage for its employees, and Edge did so. Plaintiff made a workers’ compensation claim, received workers’ compensation benefits, and signed a release. Nevertheless, the plaintiff sued C.W. for negligence and intentional tort. The trial court should have granted C.W.’s motion for summary judgment based on worker’s compensation immunity. The plaintiff’s negligence claim was barred because C.W. qualified as the husband’s statutory employer. The intentional tort claim was barred because of the absence of expert testimony of a condition virtually certain to cause injury or death and the absence of other evidence that C.W. was aware of the virtual certainty of injury or death based on prior accidents or explicit warnings, that the husband was unaware of the risk, or that C.W. concealed or misrepresented the risk. [This case contains an excellent and concise summary of the law of worker’s compensation immunity.]

JUDICIAL DISQUALIFICATION

Aberdeen Property Owner’s Association, Inc. v. Bristol Lakes Homeowner’s Association, Inc., ___ So. 2d ___ 34 Fla. L. Weekly D807 (Fla. 4^th DCA 4/22/09)

The trial judge should have disqualified himself because his personal situation aligned him with the plaintiff’s position on the primary issue to be determined in the litigation.

ARBITRATION

Tubbs v. Hudec, ___ So. 2d ___, 34 Fla. L. Weekly D814 (Fla. 2d DCA 4/22/09)

The arbitration provision in a stock purchase agreement applied to claims for indemnification. When the sellers did not receive required payments, they sued under unconditional personal guarantees. Because the lawsuit did not involve a claim for indemnification, the dispute was not arbitrable.

57.105

Anchor Towing, Inc. v. Florida Department of Transportation, ___ So. 2d ___, 34 Fla. L. Weekly D826 (Fla. 3DCA 4/22/09)

A letter threatening to file a motion for attorney’s fees under Section 57.105, Florida Statutes, did not satisfy the notice requirement of the statute. The statute requires notice in the form of a motion rather than a letter, and the statute must be strictly construed because it is in derogation of the common law.

SUMMARY JUDGMENT

Torres v. MK Tours, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D827 (Fla. 3d DCA 4/22/09)

The trial court erred by entering summary judgment for the defendant. The defendant destroyed documents, but the plaintiff did not find out about the missing documents because of the defendant’s discovery delays. As a result, the plaintiff was entitled to a continuance of the hearing on the defendant’s motion for summary judgment.

CHARGING LIEN

Hall, Lamb & Hall, P.A. v. Scherlon Investments Corp., ___ So. 2d ___, 34 Fla. L. Weekly D827 (Fla. 3d DCA 4/22/09)

Hall represented the defendant/counter-claimant in a lawsuit. When the client discharged Hall, Hall filed a notice of charging lien. After the notice was filed, the plaintiff entered into a settlement with the defendant and, without notice to Hall, paid all of the settlement funds to Hall’s successor, a disbarred attorney, who absconded with the funds. The trial court erred in denying Hall’s motion to adjudicate its charging lien against the plaintiff. Because the plaintiff was on notice of the charging lien, it was jointly and severely liable along with the former client and Hall’s successor.

STATUTE OF FRAUDS; SOVEREIGN IMMUNITY

City of Orlando v. West Orange Country Club, Inc., ___ So. 2d ___, 38 Fla. L. Weekly D834 (Fla. 5^th DCA 4/24/09)

The City of Orlando and Orange County drafted a contract to provide the West Orange Country Club with 75,000,000 gallons of free reclaimed water per year for twenty years. The country club signed the agreement, but the city and the county never did so. The country club abandoned its old irrigation system and incurred $50,000.00 in expenses to accommodate the new system, but it never accepted close to the 75,000,000 gallons per year specified in the unexecuted contract. After supplying free water for 6 years, the city and the county planned to charge customers who had not entered into long-term supply contracts, and the plaintiff sued to require the city and the county to continue to provide water free of charge according to the terms of the unexecuted contract. The city and the county defended based on the statute of frauds because the term of the contract extended beyond one year, but the trial court rejected the defense based upon principle of estoppel. The appellate court reversed because “[t]he doctrine of promissory estoppel cannot be used to circumvent the statute of frauds.” The court refused to apply the partial performance exception to the statute of frauds because (1) the plaintiff’s performance differed materially from the terms of the unexecuted contract. The contract required the plaintiff to accept 75,000,000 gallons of water per year, but the plaintiff accepted substantially less than that amount; (2) specific performance may be granted according to only the precise terms of an agreement; and (3) the plaintiff’s partial performance was meager compared to the performance it sought to impose upon the defendants. In addition, the plaintiff’s claim was barred by sovereign immunity because the contract was not approved by the governmental entities against whom the plaintiff sought to enforce it.

LOST DOCUMENTS

Environmental Services, Inc. v. Carter, ___ So. 2d ___, 34 Fla. L. Weekly D836 (Fla. 5^th DCA 4/24/09)

The trial court should not have refused to enforce against a former employee a covenant not to compete merely because the written agreement was lost.

Florida law expressly permits the introduction of parol evidence to prove the contents of a contract where the proponent provides a satisfactory explanation that the original contract was lost or destroyed. As a general rule, the loss or unintentional destruction of a written document does not affect the validity of the transaction of which it is the evidence, or the rights and liabilities of the parties to the instrument. While it would be preferable to reestablish the written instrument in the manner authorized by section 71.011, Florida Statutes (2008) [Reestablishment of papers, records, and files], the failure to do so in not fatal to [the former employer’s] attempts to enforce the agreement against [the former employee], provided that the trial court is satisfied as to its essential terms. [Citations omitted]

EXCITED UTTERANCES

Rodriguez v. State, ___ So. 2d ___, 34 Fla. L. Weekly D840 (Fla. 2d DCA 4/24/09)

A little girl ran out of an apartment, looking desperate and panicked, yelling that her father was killing her mother. The statement qualified as an excited utterance.

The mother stumbled out of the apartment with swollen eyes and a bleeding face. She got into a car, locked the door, and honked the horn. The father came out of the apartment and began screaming and banking on the car window, but he left the scene when the mother refused to open the car door. After the father left the scene, a witness approached the car, and the mother stated that her husband attacked her. When the deputies arrived, the mother was still in the car crying hysterically. She told the deputies that her husband hit her. The mother’s statements to the witness and the deputies qualified as excited utterances.

PAROL EVIDENCE; SPECIAL EQUITY IN MARITAL HOME

Syverson v. Jones, ___ So. 2d ___, 34 Fla. L. Weekly D843 (Fla. 1^st DCA 4/24/09)

Parol evidence was inadmissible to construe a prenuptial agreement because the agreement was not ambiguous.

The husband was not entitled to a special equity in the marital home because of payments for homeowner’s association fees, home insurance, property taxes, and mortgage payment. “Where a home is held as a tenancy in the entireties, ‘both parties are obligated for the whole of any expenses or debts on the property (including mortgage payments and insurance).’ . . . Even though Husband no longer lived in the house and Wife had exclusive use of the property, Husband remained liable for the full amount. In making those payments, he did not make a contribution over and above his normal marital obligation.”

EQUITABLE DISTRIBUTION

Stough v. Stough, ___ So. 2d ___, 34 Fla. L. Weekly D845 (Fla. 1^st DCA 4/24/09)

The fact that the wife contributed more money to the marriage did not justify an unequal distribution of marital property.

SYNOPSIS OF FLORIDA CASE LAW

CHILD SUPPORT

Valdes v. Valdes, ___ So. 2d ___, 34 Fla. L. Weekly D798 (Fla. 1^st DCA 4/20/09

An award of child support was reversed because the trial court failed to articulate findings regarding the actual or adjusted income of the parties. The appellate court remanded for the calculation of child support according to statutory guidelines.

WORKER’S COMPENSATION IMMUNITY

C.W. Roberts Contracting, Inc. v. Couchens, ___ So. 2d ___, 34 Fla. L. Weekly D797 (Fla. 1^st DCA 4/20/09)

C.W. was hired as the general contractor to repave a landing strip at Eglin Airforce Base, and C.W. hired Edge to remove the old asphalt from the base. The plaintiff’s husband was involved in a fatal accident while dumping a load of asphalt for Edge. C.W.’s contract with Edge required Edge to maintain workers’ compensation coverage for its employees, and Edge did so. Plaintiff made a workers’ compensation claim, received workers’ compensation benefits, and signed a release. Nevertheless, the plaintiff sued C.W. for negligence and intentional tort. The trial court should have granted C.W.’s motion for summary judgment based on worker’s compensation immunity. The plaintiff’s negligence claim was barred because C.W. qualified as the husband’s statutory employer. The intentional tort claim was barred because of the absence of expert testimony of a condition virtually certain to cause injury or death and the absence of other evidence that C.W. was aware of the virtual certainty of injury or death based on prior accidents or explicit warnings, that the husband was unaware of the risk, or that C.W. concealed or misrepresented the risk. [This case contains an excellent and concise summary of the law of worker’s compensation immunity.]

JUDICIAL DISQUALIFICATION

Aberdeen Property Owner’s Association, Inc. v. Bristol Lakes Homeowner’s Association, Inc., ___ So. 2d ___ 34 Fla. L. Weekly D807 (Fla. 4^th DCA 4/22/09)

The trial judge should have disqualified himself because his personal situation aligned him with the plaintiff’s position on the primary issue to be determined in the litigation.

ARBITRATION

Tubbs v. Hudec, ___ So. 2d ___, 34 Fla. L. Weekly D814 (Fla. 2d DCA 4/22/09)

The arbitration provision in a stock purchase agreement applied to claims for indemnification. When the sellers did not receive required payments, they sued under unconditional personal guarantees. Because the lawsuit did not involve a claim for indemnification, the dispute was not arbitrable.

57.105

Anchor Towing, Inc. v. Florida Department of Transportation, ___ So. 2d ___, 34 Fla. L. Weekly D826 (Fla. 3DCA 4/22/09)

A letter threatening to file a motion for attorney’s fees under Section 57.105, Florida Statutes, did not satisfy the notice requirement of the statute. The statute requires notice in the form of a motion rather than a letter, and the statute must be strictly construed because it is in derogation of the common law.

SUMMARY JUDGMENT

Torres v. MK Tours, Inc., ___ So. 2d ___, 34 Fla. L. Weekly D827 (Fla. 3d DCA 4/22/09)

The trial court erred by entering summary judgment for the defendant. The defendant destroyed documents, but the plaintiff did not find out about the missing documents because of the defendant’s discovery delays. As a result, the plaintiff was entitled to a continuance of the hearing on the defendant’s motion for summary judgment.

CHARGING LIEN

Hall, Lamb & Hall, P.A. v. Scherlon Investments Corp., ___ So. 2d ___, 34 Fla. L. Weekly D827 (Fla. 3d DCA 4/22/09)

Hall represented the defendant/counter-claimant in a lawsuit. When the client discharged Hall, Hall filed a notice of charging lien. After the notice was filed, the plaintiff entered into a settlement with the defendant and, without notice to Hall, paid all of the settlement funds to Hall’s successor, a disbarred attorney, who absconded with the funds. The trial court erred in denying Hall’s motion to adjudicate its charging lien against the plaintiff. Because the plaintiff was on notice of the charging lien, it was jointly and severely liable along with the former client and Hall’s successor.

STATUTE OF FRAUDS; SOVEREIGN IMMUNITY

City of Orlando v. West Orange Country Club, Inc., ___ So. 2d ___, 38 Fla. L. Weekly D834 (Fla. 5^th DCA 4/24/09)

The City of Orlando and Orange County drafted a contract to provide the West Orange Country Club with 75,000,000 gallons of free reclaimed water per year for twenty years. The country club signed the agreement, but the city and the county never did so. The country club abandoned its old irrigation system and incurred $50,000.00 in expenses to accommodate the new system, but it never accepted close to the 75,000,000 gallons per year specified in the unexecuted contract. After supplying free water for 6 years, the city and the county planned to charge customers who had not entered into long-term supply contracts, and the plaintiff sued to require the city and the county to continue to provide water free of charge according to the terms of the unexecuted contract. The city and the county defended based on the statute of frauds because the term of the contract extended beyond one year, but the trial court rejected the defense based upon principle of estoppel. The appellate court reversed because “[t]he doctrine of promissory estoppel cannot be used to circumvent the statute of frauds.” The court refused to apply the partial performance exception to the statute of frauds because (1) the plaintiff’s performance differed materially from the terms of the unexecuted contract. The contract required the plaintiff to accept 75,000,000 gallons of water per year, but the plaintiff accepted substantially less than that amount; (2) specific performance may be granted according to only the precise terms of an agreement; and (3) the plaintiff’s partial performance was meager compared to the performance it sought to impose upon the defendants. In addition, the plaintiff’s claim was barred by sovereign immunity because the contract was not approved by the governmental entities against whom the plaintiff sought to enforce it.

LOST DOCUMENTS

Environmental Services, Inc. v. Carter, ___ So. 2d ___, 34 Fla. L. Weekly D836 (Fla. 5^th DCA 4/24/09)

The trial court should not have refused to enforce against a former employee a covenant not to compete merely because the written agreement was lost.

Florida law expressly permits the introduction of parol evidence to prove the contents of a contract where the proponent provides a satisfactory explanation that the original contract was lost or destroyed. As a general rule, the loss or unintentional destruction of a written document does not affect the validity of the transaction of which it is the evidence, or the rights and liabilities of the parties to the instrument. While it would be preferable to reestablish the written instrument in the manner authorized by section 71.011, Florida Statutes (2008) [Reestablishment of papers, records, and files], the failure to do so in not fatal to [the former employer’s] attempts to enforce the agreement against [the former employee], provided that the trial court is satisfied as to its essential terms. [Citations omitted]

EXCITED UTTERANCES

Rodriguez v. State, ___ So. 2d ___, 34 Fla. L. Weekly D840 (Fla. 2d DCA 4/24/09)

A little girl ran out of an apartment, looking desperate and panicked, yelling that her father was killing her mother. The statement qualified as an excited utterance.

The mother stumbled out of the apartment with swollen eyes and a bleeding face. She got into a car, locked the door, and honked the horn. The father came out of the apartment and began screaming and banging on the car window, but he left the scene when the mother refused to open the car door. After the father left the scene, a witness approached the car, and the mother stated that her husband attacked her. When the deputies arrived, the mother was still in the car crying hysterically. She told the deputies that her husband hit her. The mother’s statements to the witness and the deputies qualified as excited utterances.

PAROL EVIDENCE; SPECIAL EQUITY IN MARITAL HOME

Syverson v. Jones, ___ So. 2d ___, 34 Fla. L. Weekly D843 (Fla. 1^st DCA 4/24/09)

Parol evidence was inadmissible to construe a prenuptial agreement because the agreement was not ambiguous.

The husband was not entitled to a special equity in the marital home because of payments for homeowner’s association fees, home insurance, property taxes, and mortgage. “Where a home is held as a tenancy in the entireties, ‘both parties are obligated for the whole of any expenses or debts on the property (including mortgage payments and insurance).’ . . . Even though Husband no longer lived in the house and Wife had exclusive use of the property, Husband remained liable for the full amount. In making those payments, he did not make a contribution over and above his normal marital obligation.”

EQUITABLE DISTRIBUTION

Stough v. Stough, ___ So. 2d ___, 34 Fla. L. Weekly D845 (Fla. 1^st DCA 4/24/09)

The fact that the wife contributed more money to the marriage did not justify an unequal distribution of marital property.

*************************************************************************************

This synopsis was prepared by Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., 1776 North Pine Island Road, Suite 324, Plantation, FL 33322 (954) 423-6553; (954) 423-6833 Facsimile. The firm concentrates principally on insurance coverage disputes and bad faith litigation. The firm website may be found at http://www.florida-insurance-lawyers.com/.