Arbitration & Mediation

You Can't Appeal An Order Compelling Arbitration In Federal Court, But You Can in Florida State Court

Posted on October 02, 2008
Florida state law and federal law differ on several aspects of compelling arbitration. One example is proving waiver of the right to arbitrate. To prove waiver under federal law requires an inconsistent act plus prejudice. Meanwhile, Florida state law has a hair trigger standard where a (poorly defined) inconsistent act alone can amount to waiver...

Lawyer Dodges 57.105 Sanctions Due to Lack of Express Finding

Posted on September 30, 2008
Like the Proposal for Settlement, Florida Statute 57.105 was enacted (and revised) in order to shorten needless litigation. Relative to 57.105, it was a sword against the sometimes-phantom, sometimes-real "frivilous" lawsuits. We rarely see appeals on this Rule and, anecdotally, we doubt many of these are even filed despite the fact that the threat is likely made on a daily basis...

Pre-Printed Contract Did Not Define "Purchaser" Nor Identify Signor

Posted on September 24, 2008
While we are obligated to acknowledge that Sadruddin Babul and Rahmat Barkat v. Golden Fuels, Inc. has contributed, in its own way, to Florida precedent, the true value of this case rests in the fact that two pro se defendants fought at the trial and appellate court and won...

Arbitration and "Choice of Law" Provisions, a Recipe for Enforcing

Posted on September 22, 2008
The Third DCA last week gave practitioners the key to enforcing arbitration in another state when the contract contains a choice of law provision. Somewhat to our surprise, some Florida lawyers wanted a malpractice claim to be heard by an arbitrator outside of Florida...

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DRI Representative Trashes Arbitration in "For the Defense"

Posted on June 03, 2008
In the April 2008 of the publication, "For the Defense," the Texas representative to the Defense Research Institute claims that arbitation and ADR "meant simply ambush your adversary and steal his cattle, wife and daughters, and be done with it." This anachronistic sentence is probably meant to be more Texan than misogenistic, but it is an interesting viewpoint coming from a DRI representative...

Poorly Worded Release Can't Be Enforced on Summary Judgment

Posted on May 29, 2008
General releases, by their nature, are intended to be broad. Ironically, they can be quite dangerous in that respect. No law school that I know of teaches how to write releases nor the interplay between contracts and torts. So lawyers must either get on-the-job training or, worse still, fall into the unacceptable habit of robotically using the firm's standard form without further thought...

Fourth District Determines the Prevailing Party by the "Significant Issues Test" and Not By Contract

Posted on May 27, 2008
Can a pre-dispute contract define the "prevailing party" based upon whether someone wins 75% or more of its claim? Apparently not, according to the Fourth DCA. It is not uncommon for contracts to indicate that the prevailing party is entitled to fees and costs...

Fourth DCA Clarifies Prior Ruling on Taxing Costs and Fees After Non-Binding Arbitration

Posted on May 22, 2008
We previously reported on the case of Jeremias Atunez v. Deborah Whitfield inwhich the Fourth DCA ruled that the "old" version of Florida Stattue 44.103(6) applied and that taxable costs should be considered part of the judgment when determining whether a party who was sent to non-binding arbitration and then trial is entitled to attorney's fees...

First DCA Opinion on Proposal for Settlement Language Continues to Muddy the Waters

Posted on May 20, 2008
Proposals for Settlement are tricky little creatures. Designed to create a simple method to trigger settlement, the Proposal is mired in various procedural requirements for monetary and non-monetary terms and is a slave to both a Rule of Civil Procedure and a Florida Statute...

eBay "Live Auction" Auction House's Terms and Conditions = "Block of Impenetrable Text"

Posted on May 15, 2008
We must confess our interest in eBay, which is not only the "world's largest online auction hosting service" but also the catalist of quite a bit of litigation. Some longtime readers might recall there are lawyers as far away as Tennessee at the ready to sue the California company...

Third DCA "Sets the Stage" For Bad Faith Where Insurer Demands Hold Harmless and Subrogation Waiver

Posted on May 13, 2008
What language is "customary" in a settlement release? Apparently not hold harmless and subrogation waiver clauses, at least in a third-party insurance claim settlement according to two of three panel members of the Third District. In Olga Peraza v...

Florida Lawyer Violates Bar Rules With Paralegal Fee Sharing Contract, Claims Public Policy Defense

Posted on May 09, 2008
The Fourth District handed down an opinion where it declined to void a contract which violates Florida Bar rules because it would "discourage attorney compliance with the rule in question" and because public policy was not at stake. While the Court leapt through some mental gymnastics to keep the $87k claim alive against a lawyer who appears to have violated Bar fee-sharing rules, the Court likewise dropped clear disclaimers seeking to narrow the precedential value of the case...

Settlement Agreement Included Too Many Parties

Posted on May 07, 2008
The opinion in Patrick Flynt v. Progressive Consumers Insurance Company et al. probably should have included more facts -- if not a little "color" -- since we do not fully get the picture as to how one defendant settled and somehow convinced plaintiff and counsel to include the other defendant on the release...

Is Waiver of a Forum Selection Clause a "Permanent Waiver" For Subsequent Disputes?

Posted on May 06, 2008
We last touched upon the question of waiver back in February with the discussion of the Estate of Orlanis v. Oakwood Terrace and Regents Park case involving waiver of the right to arbitrate. The Fifth District has now issued an opinion regarding the waiver of a forum selection clause, relying upon similar case authority...

Just in Time For Summer, Parent's Agreement to Liability Waiver in Child's Camp Release is Not Enforced

Posted on May 01, 2008
Florida intermediate appellate courts, believing they are following the will of the Florida Supreme Court, have been claiming that public policy prohibits the enforcement exculpatory clauses signed by parents for their children when the other contracting party is a commercial enterprise...

4th DCA Finds Default is Not Waiver of Jury Trial

Posted on April 29, 2008
This is one of those cases where the legal holding is probably not nearly as interesting as the underlying facts of the dispute. But, it does answer some questions about the breadth of a prayer for jury trials in pleadings. In Harry Shasho v. Euro Motor Sport, Inc...

Florida Senator Submits "Nursing Home Fairness Act" to Amend FAA

Posted on April 24, 2008
Florida Senator Mel Martinez (R) co-sponsored a bipartisan bill, Fairness In Nursing Home Arbitration Act. The Act seeks to amend the Federal Arbitration Act to prevent nursing homes and ALF's from using pre-dispute arbitration clauses. It also requires that the interpretation of such clauses be determined by the court, not the arbitrator...

National Law Journal Article Oversells Gloom and Legislation on Arbitration

Posted on April 22, 2008
Is it just us or are we sensing a tide of legal-journalism pieces prophecizing the end to arbitration? Scroll down on this page and you will see our Wall Street Journal article which, by its front page stature, suggests that arbitration-concerns are either (1) something readers are interested in or (2) something the WSJ wants readers to be interested in...

Does Justice Stevens Lack Confidence in Juries in Death Penalty Cases?

Posted on April 17, 2008
On this site, we've talked about controversial topics such as abortion, juror confidentiality, exotic dancers, and even... Britney Spears. While we've yet to discuss presidential elections, gun control, the Middle East or church-state relations, surely that day is coming...

Wall Street Journal Slams Nursing Home Arbitration

Posted on April 16, 2008
In a well-researched but decidedly slanted piece, the Wall Street Journal ran a front page article on Friday, April 11 entitled, "Nursing Homes, in Bid to Cut Costs, Prod Patients to Forego Lawsuits." To see the full article, you need to log in for a trial online subscription...

Division of Marital Property Makes Divorced Wife Bound By Ex-Husband's Shareholder Agreement

Posted on April 10, 2008
While the following case is largely fact-specific, it is an interesting blending of two contracts to find the result that a non-signatory is bound by an arbitration provision. In The Steritech Group, Inc. v. Cassandra Mackenzie, David Mackenzie was party to a shareholder agreement with Steritech where he had some ownership...

Pennsylvania Depo Where Witness Says ?Fuck? 70+ Times but References the Contract Only 14 Times

Posted on April 08, 2008
Less than 1.5 of all civil cases filed in federal court result in trial. So says a 2006 federal court study cited in the case of GMAC Bank v. HTFC Corporation in a February 29, 2008 memo. While this is a Pennsylvania case, it is one that is slowly developing some media attention and it is worth pointing out the issues regarding unethical and inappropriate conduct by witnesses and lawyers which occurs in both litigation and arbitration...

FL Supreme Court Enforces "Premature" Motion for Fees on Expired Proposal for Settlement

Posted on April 03, 2008
Proposals for Settlement are tough legal creatures. Receipt of one requires a conference with the client. Timing is an issue (too early? too late?). Calculating possible exposure requires... a calculator. And enforcement requires luck. At least in the current Florida environment...

2nd DCA instructs on proper method of doctor-patient arbitration

Posted on April 01, 2008
We get a number of questions from doctors and clinics as to whether they can insert arbitration or jury waiver clauses into their patient contracts. Generally speaking, the answer is yes and it can be done in a way to avoid a lot of the typical controversies...

2008 Pacific Research Institute Study Finds Florida Has Worst Tort System

Posted on March 27, 2008
A study by a "distinguished conservative leader in public policy" found that, among all 50 states, Florida has the worst tort system. The Pacific Research Institute's lengthy 2008 U.S. Tort Liability Index even has a foreward by the former governor, Jeb Bush...

Nonsensical and Poorly Worded Fee Provision Not Enforced

Posted on March 25, 2008
General guidelines of writing attorney fee provisions, like arbitration clauses, typically start with the concept of clear and broad language. This recent Fifth DCA opinion, while involving an attorney fee provision, violates both. It is, however, instructive for those involved in drafting arbitration clauses...

6th Circuit Finds No Qui Tam Standing Under Medicare Secondary Payer Act

Posted on March 20, 2008
We cover arbitration, mediation, exculpation, and various other ADR issues including settlement in our blog. Sometimes we travel a bit outside of the state of Florida and other times we meander just outside the walls of ADR issues. This case is a bit of both, seeing that it involves the Medicare Secondary Payer Act in a non-Florida case however it does involve Florida lawyers, health care providers, and a legal issue which, the plaintiff had succeeded, might have significantly altered how lawyers pursue medical payment claims and settlements...

Sixth Circuit Questions "Final" v. Non-Appealable and How "Neutral" is Your Arbitrator?

Posted on March 18, 2008
We pick up this Sixth Circuit federal court case since it confronts two issues for which there is nominal Florida precedent, despite the fact that these arbitration issues repeatedly occur in our fair state -- a state which lacks for little except presidential primary democrat delegates...

Meaning of "Service" Versus "Receipt" Under Chapter 766 Arbitration Provision

Posted on March 13, 2008
The case of Columbia/JFK Medical Center Limited, etc. v. Sam and Matilda Sangounchitte will likely be an important case for medical negligence lawyers interested in the ongoing tug-of-war between plaintiffs' lawyers and hospital lawyers over whether hospitals can be blamed for (nominally-insured) physicians under different vicarious-liability type claims...

How to Escape Judgment on Chapter 44 Non-Binding Arbitration

Posted on March 12, 2008
We've written before about how lawyers and courts are struggling with the 20-day rule to seek a trial de novo once the arbitrator issues its award in Chapter 44 non-binding arbitration (see here and here). Enter this interesting two-paragraph decision which shows that a Motion for Relief From Judgment (Rule 1...

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