Representative Matters

  • Holmes Reg’l Med. Ctr., Inc. v. Allstate Ins. Co., No. SC15-1555, ___ So. 3d ____, 2017 WL 2981863 (Fla. July 13, 2017). The Florida Supreme Court quashed the decision of the Fifth District Court of Appeal and ruled in our client’s favor by holding that an initial tortfeasor which has had judgment for its negligence entered against it – but has not fully satisfied that judgment – is not entitled to seek equitable subrogation from a subsequent tortfeasor, such as an allegedly negligent treating physician.
  • McDaniel v. Fifth Third Bank, No. 2D15-464, ___ So. 3d ___ (Fla. 5th DCA June 7, 2016). Florida’s Fifth District Court of Appeal affirmed the dismissal of a putative class action alleging unlawful check cashing fees.  The Fifth District affirmed the trial court’s ruling that the claims were federally preempted, as well as its rulng that section 655.85, Florida Statutes, does not provide a private cause of action.
  • PNC Bank , Nat’l Assoc. v. Smith, et al., No. S15Q1445, ___ Ga. ____ (Ga. Feb. 22, 2016). The Georgia Supreme Court unanimously held that guarantors could expressly waive protections afforded to them by Georgia’s anti-deficiency statute. In response to two questions certified by the U.S. District Court for the Northern District of Georgia, the court found that compliance with Georgia’s anti-deficiency statute requiring confirmation of a non-judicial foreclosure sale constituted a condition precedent to a lender’s pursuit of a deficiency action to recover from guarantors the remaining balance owed on a loan following foreclosure of collateral property. But, the court further held that guarantors could contractually waive such condition precedent, thereby allowing a lender to pursue a deficiency directly from guarantors, the lack of confirmation of such sale notwithstanding.
  • Charlotte County v. Andress Family Florida, LP, et al., No. 2D14-4249, ___ So. 3d ___ (Fla. 2d DCA Feb. 3, 2016). Florida’s Second District Court of Appeal affirmed a final judgment for plaintiffs in a multimillion-dollar inverse condemnation action. The court affirmed the finding that Charlotte County, through its actions, inactions, and regulations, effected a compensable temporary taking of private property in violation of the United States and Florida constitutions.
  • Hoefling v. City of Miami, No. 14-12482, 2016 WL 285358 (11th Cir. Jan. 25, 2016). The Eleventh Circuit Court of Appeals reversed the district court’s dismissal of all of plaintiffs’ claims except his substantive due process claim. Plaintiff asserted that the city illegally seized and destroyed his sailboat without justification or notice. The court held, among other things, that the trial court incorrectly 1) applied a heightened pleading standard to plaintiff, 2) considered reports attached to the first amended complaint but omitted from the second, 3) deemed the procedural due process claim insufficient as to municipal liability, and 4) concluded that the seizing officers were entitled to qualified immunity based on the improperly considered reports.
  • Crosby Valve, LLC v. Dep't of Ins., No. 78 C.D. 2015, 2016 WL 164094 (Pa. Commw. Ct. Jan. 14, 2016). The Commonwealth Court of Pennsylvania affirmed the orders of the Pennsylvania Insurance Department, which denied policyholder objectors’ motions to intervene in the department’s administrative review proceeding involving a “Form A” transaction to transfer ownership of several insurance companies, and which protected the confidential financial and business information of the parties to the transaction. The court held that the insurance department did not violate the policyholder objectors’ due process rights in the proceeding, and dismissed, for lack of standing, the policyholder objectors’ attempted appeal from the department’s order approving the transaction.
  • Dello Russo v. Fifth Third Bank, No. 15-13300, 2015 WL 9300650 (11th Cir. Dec. 22, 2015). The Eleventh Circuit Court of Appeals affirmed dismissal with prejudice of a complaint alleging a multimillion dollar claim. The complaint alleged a lender committed fraud and was unjustly enriched in conjunction with the plaintiff’s personal guaranty of corporate promissory notes. The district court applied Illinois law to dismiss the complaint, finding the parties agreed to the application of Illinois law in the guaranty, even though the guarantor argued his claims were “extra contractual.” The Eleventh Circuit agreed the choice-of-law contract provision applied and that dismissal was required under Illinois law.
  • Allstate Ins. Co. v. Theodotou, 171 So. 3d 163 (Fla. 5th DCA 2015). Represented medical care providers in a case certifying a question of great public importance to the Florida Supreme Court on the application of the equitable subrogation doctrine, where an unsatisfied judgment had been entered against the initial tortfeasor. The Florida Supreme Court accepted jurisdiction, and review is pending.
  • Rothstein v. Balboa Ins. Co., 794 F.3d 256 (2d Cir. 2015). The Second Circuit Court of Appeals reversed the district court’s order denying defendants’ motion to dismiss on the basis of the “filed rate doctrine.” The court ruled that a claim challenging a regulated-approved rate is subject to the doctrine regardless of whether the rate passes through an intermediary. Finding that the plaintiffs’ claims would undermine the rate-making authority of the state insurance regulators who approved the rate, the court remanded for dismissal.
  • Wachovia Mtg. Corp. v. Posti, 166 So. 3d 944 (Fla. 4th DCA 2015). Florida’s Fourth District Court of Appeal held the trial court lacked jurisdiction to award the requested relief because it was not requested in the pleadings or tried by consent.
  • Wells Fargo N.A. v. Michaels, 166 So. 3d 226 (Fla. 5th DCA 2015). Florida’s Fifth District Court of Appeal reversed the trial court’s denial of a motion to vacate the torder dismissing the case because the trial court failed to enter or serve the order or otherwise give notice to the parties.
  • Bond Safeguard Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., No. 14-15233, 2015 WL 5781002 (11th Cir. Oct. 5, 2015). The Eleventh Circuit Court of Appeals upheld the application of a directors & officers liability policy’s “arising out of” contract liability exclusion to a land development-related business dispute between the developer and its surety, which was pleaded solely in tort. The court held that a clear nexus existed between the alleged torts and that the underlying development contracts, that the tort claim was inextricably intertwined with circumstances surrounding the development contracts, and that the resolution of the tort claim required consideration of the losses and duties under the development contract.
  • Matheson v. Miami-Dade County, No. 3D14-405, 2015 WL 3390177 (Fla. 3d DCA May 27, 2015). Florida’s Third District Court of Appeal held a constitutional referendum clearly and unambiguously explained to voters its purpose, which was to find out whether two-thirds of those voters supported the expansion of a tennis center that hosts the Miami Open Tennis Tournament and modification and extension of the county’s agreements with the operator of the facility.
  • Bank of Am., Nat’l Ass'n v. Asbury, 165 So. 3d 808 (Fla. 2d DCA 2015). Florida’s Second District Court of Appeal reversed a final judgment finding plaintiff did not comply with a condition precedent to a foreclosure action and remanded. On appeal, plaintiff argued and the court agreed that the trial court improperly considered whether a default notice had been delivered because defendant did not raise the issue in her answer or as an affirmative defense.
  • AHF-Bay Fund, LLC v. City of Largo, 169 So. 3d 133 (Fla. 2d DCA 2015), review pending, SC15-1201Florida’s Second District Court of Appeal reversed an order granting summary judgment in favor of the City of Largo based on a PILOT (payment in lieu of taxes) agreement. The court ruled that the payments called for by the PILOT agreement and sought to be enforced by the city against a not-for-profit, tax-exempt entity are the equivalent of ad valorem taxes that would otherwise be due but for the statutory tax exemption and, as a result, the city’s PILOT agreement violates article VII, § 9(a) of the Florida Constitution (providing that municipalities shall impose taxes only as authorized by law) and the public policy of promoting affordable housing. The court ruled the PILOT agreement was therefore void. Read Opinion.
  • Merrimon v. UNUM life Ins. Co. of Am., 758 F.3d 46 (1st Cir. 2014). The First Circuit Court of Appeals held that the insurer’s use of retained asset accounts did not constitute self-dealing under ERISA section 406(b), but reversed as to the trial court’s ruling that the insurer breached a duty of loyalty to the plaintiff class under ERISA section 406(a) through the use of those accounts.
  • Am. Bus.USA Corp. v. Dep’t of Rev., 151 So. 3d 67 (Fla. 4th DCA 2014), review pending, SC14-2404. The Fourth District Court of Appeal struck down a tax assessed by the Florida Department of Revenue as a violation of the dormant Commerce Clause of the United States Constitution. The Florida Department of Revenue collected sales tax from a Florida florist for orders placed by out-of-state customers. These orders were relayed to out-of-state florists, and these out-of-state florists would actually fill the orders and deliver the flowers. Despite an administrative regulation directly on point, the Fourth District overturned the tax and determined that Florida had no “substantial nexus” to such transactions. Because the flowers never entered Florida and did not have any type of connection to Florida, the State of Florida could not constitutionally tax these transactions. The Fourth District also upheld a tax assessed on calling-card sales based on a record-keeping issue.
  • McDaniel v. Fifth Third Bank, 588 F. App'x 729 (11th Cir. 2014). The Eleventh Circuit Court of Appeals reversed an order remanding a putative class action to Florida state court. The district court ruled that certain of the claims asserted were legally insufficient and, thus, the damages claimed thereunder did not satisfy the amount-in-controversy requirement of the Class Action Fairness Act of 2005 (CAFA), Pub. L. No. 109–2119, Stat. 4. The Eleventh Circuit held that when determining subject matter jurisdiction, the issue is not the plaintiff’s probable success on the merits.
  • In re Adoption of D.P.P., 158 So. 3d 633 (Fla. 5th DCA 2014). The Fifth District Court of Appeal reinstated a judgment of adoption and reversed the order that vacated that judgment of adoption on the basis that the trial court lacked jurisdiction to consider a petition for adoption filed by unmarried women.
  • Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008 (11th Cir. 2014). The Eleventh Circuit Court of Appeals reversed a district court order that refused to grant full injunctive relief for violations of real-property restrictive covenants running with the land.
  • General Electric Capital Corp. v. Shattuck, 132 So. 3d 908 (Fla. 2d DCA 2014). The Second District Court of Appeal reversed a $1.1 billion judgment, holding that the court erroneously added non-party entities to that judgment.
  • Bloch v. Wells Fargo Home Mortgage, 755 F. 3d 886 (11th Cir. 2014).  The Eleventh Circuit Court of Appeals affirmed a final defense summary judgment addressing the effect of a “trial” loan modification, application of the Florida Bank Statute of Frauds, and the proof needed to maintain promissory estoppel and negligence claims.
  • Cohen v. Am. Sec. Ins. Co., 735 F.3d 601 (7th Cir. 2013). The Seventh Circuit Court of Appeals affirmed the dismissal of a class action complaint. A homeowner failed to purchase homeowner’s insurance, and pursuant to disclosures in the loan agreement, the lender secured insurance and passed the cost to the homeowner. The homeowner sued under a variety of statutory and common law claims, most of which sounded in fraud or tort, and argued that the lender-placed insurance was too expensive and included a “kickback” to the lender’s insurance-agency affiliate. Although the district court dismissed based on federal preemption and the filed-rate doctrine, the Seventh Circuit affirmed because the complaint and proffered amendments thereto failed to state a viable claim for relief. The homeowner was contractually obligated to maintain property insurance and the consequences for failing that obligation had been clearly disclosed.
  • London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1248 (11th Cir. 2003). The Eleventh Circuit Court of Appeals decertified a class in a suit alleging that appellants violated Florida laws affecting credit life insurance, finding the class representative failed to meet Rule 23(a)(4)'s adequate representation prerequisite because of the significant personal and financial ties between the class representative and class counsel, which cast doubt on the appellee’s ability to place the interest of the class above those of class counsel.
  • City of Palm Bay v. Wells Fargo Bank, N.A., 114 So. 3d 924 (Fla. 2013).  The Florida Supreme Court invalidated a municipal ordinance that gave local code enforcement liens “superpriority” over previously recorded interests in real property, such as mortgage liens. The court held that the Florida Legislature has adopted a prioritization scheme for recorded instruments, with a general rule of first in time, and that municipalities cannot adopt ordinances that conflict with that statutory scheme by giving certain liens priority over instruments that would otherwise have priority under state law.
  • Farkas v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 518 Fed. Appx. 178 (4th Cir. 2013).The Fourth Circuit Court of Appeals affirmed a decision that put teeth into exclusions of coverage of a directors and officers liability policy where the insured “in fact” committed criminal acts. The insured sought coverage for defense costs for his federal criminal trial for bank, wire, and securities fraud.
  • Kostelac v. Allianz Global Corp.& Specialty AG, 517 F. App’x 670 (11th Cir. 2013). The Eleventh Circuit Court of Appeals upheld the enforcement of an international forum-selection clause contained in an aviation product-liability policy issued to a German aircraft manufacturer. The putative assignees of the German insured, who were American citizens, had attempted to evade the forum-selection clause, which mandated that all coverage litigation take place in the courts of Germany. The Eleventh Circuit agreed that the clause was enforceable against the American assignees and affirmed dismissal of the action to Germany under the doctrine of forum non conveniens.
  • Ford Motor Company v. Stimpson, 115 So. 3d 401 (Fla. 5th DCA 2013). Following a verdict in Ford’s favor, the trial court entered judgment in plaintiff’s favor, and alternatively ordered a new trial, finding Ford committed a fraud on the court. The Fifth District Court of Appeal reversed and remanded for reinstatement of the verdict, concluding the record did not support the fraud finding and that the jury had already considered and rejected these allegations. In addition, the court held the new trial was inappropriate.
  • Plancher v. UCF Athletics Ass’n, Inc., Case No. SC13-1872, --- So. 3d ----, 2015 WL 2458015 (Fla. May 28, 2015). The Florida Supreme Court confirmed the analysis used to examine whether a corporation acts as an instrumentality of the state and thus possesses limited sovereign immunity. In a case involving the death of a college football player, a trial court ruled that the corporation operating UCF’s athletics department lacked sovereign immunity, and the plaintiff obtained a $10 million judgment. The Fifth District Court of Appeal reversed, and the Supreme Court approved that reversal, holding that sovereign immunity and the $200,000 cap on liability applied.
  • Farias v. Mr. Heater, Inc., et al., 684 F.3d 1231 (11th Cir. 2012). The Eleventh Circuit Court of Appeals affirmed summary judgment in favor of manufacturer. The court held that the product’s English-language warnings were adequate as a matter of law. The court also held that because manufacturer and retailer did not advertise or market the product in Spanish, they were not required to include Spanish-language instructions and warnings.
  • Union Carbide Corp. v. Aubin, 97 So. 3d 886 (Fla. 3d DCA 2012), rev. pending SC12-2075. The Third District Court of Appeal reversed a $6.6 million judgment and ordered a partial new trial in a products liability case. The court held that a raw asbestos supplier was entitled to a directed verdict on a defective design claim because no evidence showed the alleged design caused the injuries at issue. The court also held that the jury instructions on a failure to warn claim were misleading because they imposed a duty on the raw material supplier to warn users of finished products about the dangers of asbestos without explaining how the supplier could satisfy that burden. The Florida Supreme Court accepted jurisdiction to review this decision and the case remains pending.
  • Hunter v. Runyan, 382 S.W.3d 643 (Ark. 2011). The Supreme Court of Arkansas affirmed the denial of a motion to intervene in a nationwide class action settlement.
  • McKesson Medication Mgmt., LLC v. Slavin, 75 So. 3d 308 (Fla. 3d DCA 2011). The Third District held that a pharmacy operator had no duty to train nurses and doctors regarding medications used during surgery. The court reversed a $5.3 million personal injury judgment and remanded for entry of judgment in operator’s favor.
  • Archbishop Coleman F. Carroll High School, Inc. v. Maynoldi, 30 So. 3d 533 (Fla. 3d DCA 2010). The family of a teenager severely injured in an automobile accident sued his school alleging they were responsible for a party that occurred after school hours and off-campus. The Third District reversed a $12 million judgment for entry of judgment in the school's favor, finding a school has no duty to supervise nonschool related activities. The case also addressed the application of alcohol defense statute to parents of injured minor.
  • Godfrey v. Precision Airmotive Corp., 46 So. 3d 1020 (Fla. 5th DCA 2010). The Fifth District reversed a multi-million dollar verdict against an airplane engine manufacturer on the basis of the improper admission of evidence of other accidents. The appellate court also held that the trial court correctly entered summary judgment in favor of the manufacturer on the issue of punitive damages.
  • American Civil Liberties Union v. Miami-Dade County School Board, 557 F.3d 1177 (11th Cir. 2009). The Eleventh Circuit Court of Appeals reversed a preliminary injunction, finding that the school board did not violate the First Amendment in choosing to replace an elementary school library book containing inaccuracies about Cuba.
  • Coleman (Parent Holdings, Inc.) v. Morgan Stanley & Co., Inc., 20 So. 3d 952 (Fla. 4th DCA 2009). The Florida Fourth District Court of Appeal affirmed a trial court order denying the plaintiff’s motion to set aside a judgment in Morgan Stanley’s favor. Plaintiff had sought to set aside the judgment and obtain a new trial based upon allegations of fraud after the trial court entered judgment in accordance with the Fourth District’s earlier opinion reversing the $1.58 billion judgment against Morgan Stanley.
  • Embry v. Ryan, 11 So. 3d 408 (Fla. 2d DCA 2009). In a case of first impression, the Second District Court of Appeal held that woman who adopted biological child of her same-sex partner was entitled full faith and credit of adoption entered into in another state.
  • Manor Care, Inc. v. Keith, 218 P. 3d 1257 (N.M. Ct. App. 2009). The New Mexico Court of Appeals reversed a $53.2 million judgment, including punitive damages, against our client, and ordered a new trial. The appellate court agreed that the trial court erred by entering a pre-trial finding that a parent company employed the staff who worked at its subsidiary's nursing home.
  • Alvarez v. Insurance Company of North America, 313 Fed.App’x 465 (3d Cir. 2008). The Third Circuit Court of Appeals affirmed dismissal of putative class action by insured under a long term care policy, holding that neither the policy nor sales materials were false or misleading, the insured did not rely on any alleged misrepresentation, and no confidential relationship existed between the insurer and the insured at the time of the alleged misrepresentations.
  • Ford Motor Co. v. Hall-Edwards, 971 So. 2d 854 (Fla. 3d DCA 2007). In this products liability action, the Third District Court of Appeal: i) reversed a $60 million jury verdict in favor of parents of a minor killed in an accident involving an Explorer (based on the improper admission of evidence of other accidents and evidence of subsequent remedial measures); and, ii) ordered a new trial.
  • Engle v. R.J. Reynolds, 945 So. 2d 1246 (Fla. 2006), affirming in part and reversing in part, 853 So. 2d 434 (Fla. 3d DCA 2003). The Florida Supreme Court overturned a $145 billion award in a class action brought against multiple cigarette manufacturers. The appeal involved issues concerning class certification, punitive damages and improper conduct of counsel.
  • Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006). In a case alleging that an insurer’s predecessor violated federal law by charging higher premiums to African American policyholders, we argued that the limitations defense could not be resolved on a classwide basis, and the Fourth Circuit Court of Appeals affirmed the district court’s denial of class certification.
  • London v. Wal-Mart Stores, Inc., 340 F.3d 1246 (11th Cir. 2003). The Eleventh Circuit Court of Appeals reversed class certification in action brought by credit card applicant against issuer and credit life insurer, alleging Truth in Lending Act violations, finding that the applicant could not fairly and adequately represent the class.
  • Zarella v. Minnesota Mutual Life Ins. Co., 824 A.2d 1249 (R.I. 2003). The Supreme Court of Rhode Island vacated judgment on jury verdict in favor of insured on negligent misrepresentation claim, and affirmed the trial court’s denial of class certification and dismissal of plaintiff’s remaining claims.
  • American Bankers Ins. Co. of Florida v. Booth, 830 So.2d 1205 (Miss. 2002). The Mississippi Supreme Court, on an interlocutory appeal, reversed chancery court’s denial of defendant’s motion to dismiss class action complaint, holding that Mississippi does not permit class actions, including equitable class actions, in chancery court.
  • Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002). Argued case before the U.S. Supreme Court that clarified the circumstances in which monetary relief is available under ERISA for breach of fiduciary duty claims.
  • Parkhill v. Minnesota Mut. Life Ins. Co., 286 F.3d 1051 (8th Cir. 2002). In an action alleging deceptive marketing practices, we defeated class certification and obtained summary judgment on behalf of life insurer, which the Eighth Circuit Court of Appeals affirmed.
  • In re LifeUSA Holding Inc., 242 F.3d 136 (3d Cir. 2001). Argued to the Third Circuit Court of Appeals that commonality, superiority, and predominance requirements of Rule 23 were not satisfied in a class action case brought by purchasers of deferred annuity contracts, who asserted pre-sale misrepresentation and non-disclosure claims.

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