ATLANTA - A bank waived its right to compel arbitration when it decided to decline two invitations by a Florida federal court to move to compel arbitration in five putative class suits brought by the bank's customers, the 11th Circuit U.S. Court of Appeals ruled Oct. 26 (Melanie Garcia, et al. v. Wachovia Corporation, et al., No. 11-16029, 11th Cir.). View related prior history, 2011 U.S. Dist. LEXIS 145034.
TALLAHASSEE, Fla. - A Florida tobacco plaintiff who sued as a member of the class created in Engle v. Liggett Group, Inc. (945 So. 2d 1246 [Fla. 2006]) is precluded from seeking punitive damages under negligence and strict liability theories, the state's First District Court of Appeal said Oct. 24, but the majority certified the question to the Florida Supreme Court (Lucille Ruth Soffer v. R.J. Reynolds Tobacco Company, et al., No. 1D11-3724, Fla. App, 1st Dist.; 2012 Fla. App. LEXIS 18385). A complimentary copy of the opinion is available in the pdf attached below.
MIAMI - A Florida federal judge on Oct. 23 concluded that joinder of 50 unrelated John Doe defendants in an Internet-based file-sharing case was improper, granting motions to quash discovery subpoenas filed by a handful of the Does and severing all but one from the copyright infringement case (Aerosoft GmbH v. John Does 1-50, No. 1:12-cv-21489, S.D. Fla.; 2012 U.S. Dist. LEXIS 151977).
WEST PALM BEACH, Fla. - The majority of claims by medical providers alleging that health insurers violated the Employee Retirement Income Security Act (ERISA), 29 U.S.C.S. § 1001 et seq. by granting preapproval for medical procedures and then denying coverage are sufficient to survive the insurers' motion to dismiss, a federal judge in Florida ruled Oct. 22 (Sanctuary Surgical Centre, Inc., et al. v. UnitedHealthcare, Inc., et al., No. 10-81589, S.D. Fla.; 2012 U.S. Dist. LEXIS 151404).
TAMPA, Fla. - A shareholder has properly shown that a company's directors breached their fiduciary duty by their actions during a merger deal, a federal judge in Florida ruled Oct. 22 in granting in part and denying in part the defendants' motion to dismiss (Alan Gault v. SRI Surgical Express Inc., et al., No. 12-1389, M.D. Fla.; 2012 U.S. Dist. LEXIS 151409).
TAMPA, Fla. - A professional liability insurer has a duty to defend an accounting firm against a claim of conspiracy arising out of alleged negligent conduct in the performance of professional services, a Florida federal judge ruled Oct. 18 (Philadelphia Indemnity Insurance Company v. Stephen H. Hamic, et al., No. 12- 829, M.D. Fla., Tampa Div.; 2012 U.S. Dist. LEXIS 150067).
ORLANDO, Fla. - A Florida federal judge on Oct. 22 adopted and denied portions of a magistrate judge's report and recommendation in a case filed by an insurer that seeks a declaration in relation to rights and obligations under a policy covering a hotel and various employees involved in underlying litigation, finding that it was inappropriate to rule on a duty to indemnify claim at the present stage of the case (Penn-America Insurance Co. v. Deslin Hotels Inc., et al., No 6:11-cv-1990, M.D. Fla.; 2012 U.S. Dist. LEXIS 151361).
TAMPA, Fla. - A commercial general liability insurer had no duty to defend or indemnify an insured against an underlying action alleging conduct related to a partnership that was not listed as a named insured on the policy, a Florida federal judge ruled Oct. 17 (Carl H. Christiansen v. Mid-Continent Casualty Co., No. 12-01529, M.D. Fla.; 2012 U.S. Dist. LEXIS 149581).
WEST PALM BEACH, Fla. - A divided Florida state appeals court has reversed itself and reinstated a $1.9 million tobacco death judgment against Philip Morris USA Inc., saying in an Oct. 17 opinion that a question on the statute of limitations should not have been put to the jury (Philip Morris USA, Inc. v. Leon Barbanell, No. 4D09-3987, Fla. App., 4th Dist.). A complimentary copy of the opinion is available in the pdf attached below.
ORLANDO, Fla. - Dismissal of state and federal debt collection law claims against a defendant is not proper because the consumer who brought the complaint has not used allegations that are too vague or conclusory, a federal judge in Florida ruled Oct. 16 in denying the defendant's motion to dismiss (Marlene Beaudin v. Chase Home Finance LLC, et al., No. 12-1084, M.D. Fla.; 2012 U.S. Dist. LEXIS 148425).
TAMPA, Fla. - A federal judge in Florida on Oct. 15 granted in part and denied in part a consumer's motion to strike 14 defenses that were part of a debt collector's answer to the consumer's complaint that alleges that the debt collector's attempt to collect on a mortgage debt violated state and federal debt collection laws (Kristen Nicole Bruce v. Ocwen Loan Servicing LLC, No. 12-1561, M.D. Fla.; 2012 U.S. Dist. LEXIS 147897).
FORT LAUDERDALE, Fla. - A Florida federal judge on Oct. 16 denied a motion for summary judgment filed by a Florida man who filed a class complaint against a Miami nightclub for allegedly sending unsolicited text messages to people via an automatic telephone dialing system (ATDS) in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C.S. § 227, (Brandon M. Buslepp, et al. v. Improv Miami, Inc., No. 12-60171, S.D. Fla.; 2012 U.S. Dist. LEXIS 148527).
MIAMI - A federal magistrate judge in Florida on Oct. 15 allowed a consumer's suit alleging that a debt collection agency's phone calls violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C.S. § 227, to proceed, explaining that he cannot resolve at the motion-to-dismiss stage the issue of whether the consumer consented to the calls (Jamar A. Scott v. Merchants Association Collection Division Inc., No.12-23018, S.D. Fla.; 2012 U.S. Dist. LEXIS 147987).
TAMPA, Fla. - An insurer has no duty to defend its insured against an underlying personal injury suit arising out of exposure to carbon monoxide fumes because the undisputed evidence shows that the policies' pollution buy-back exclusion clearly bars coverage, a Florida federal judge said Oct. 12 (Composite Structures Inc. d/b/a Marlow Marine Sales v. The Continental Insurance Co., No. 12-173, M.D. Fla.; 2012 U.S. Dist. LEXIS 147320).
TAMPA, Fla. - An assault and battery exclusion precludes coverage for an insured's alleged negligence in the death of man, a Florida federal judge ruled Oct. 11, finding that the insurer has no duty to defend or indemnify its insured (Evanston Insurance Co. v. S&Q Property Investment LLC, et al., No. 11-2121, M.D. Fla.; 2012 U.S. Dist. LEXIS 146387).
ATLANTA - A Florida federal judge properly awarded Coca-Cola Co. $578,146 in attorney fees and costs in a copyright suit, the 11th Circuit U.S. Court of Appeals affirmed Oct. 12 (Rafael Vergara Hermosilla v. Coca-Cola Company, No. 11-14175, 11th Cir.).
LAKE CHARLES, La. - The mere existence of an interactive website is insufficient to establish jurisdiction over an out-of-state defendant absent actual use of the site, a Louisiana appeals panel ruled Oct. 10, affirming dismissal of a lawsuit against a Florida hotel (Thomas J. Hensgens v. Pelican Beach Resort, No. 12-268, La. App., 3rd Cir.; 2012 La. App. LEXIS 1283).
TAMPA, Fla. - A Florida federal judge on Oct. 11 refused to grant summary judgment for a condominium owner, finding that genuine issues of material fact existed in relation to who was responsible for a sewer line blockage that resulted in flooding and mold growth (Christopher A. Sterbenz v. Lois N. Anderson, No. 8:11-cv-1159, M.D. Fla.; 2012 U.S. Dist. LEXIS 146383).
JACKSONVILLE, Fla. - Plaintiffs asserting death and injury from smoking have asserted sufficient claims of corporate wrongdoing to warrant punitive damages, a Florida federal judge said in an Oct. 5 opinion, denying the companies' motion to strike (In re: Engle Cases, No. 3:09-cv-10000-J-32JBT, Rudy v. R.J. Reynolds Tobacco Co., et al., No. 3:09-cv-11071-J-32JBT, Narushka v. R.J. Reynolds Tobacco Co., et al., No. 3:09-cv-10190-J-32JBT, Smith v. R.J. Reynolds Tobacco Co., et al., No. 3:09-cv-10048-J-32JBT, Wilder v. R.J. Reynolds Tobacco Co., et al., No. 3:09-cv-10109-J-32JBT, M.D. Fla., Jacksonville Div.; 2012 U.S. Dist. LEXIS 144547).
MIAMI - A Florida federal judge on Oct. 2 granted a cruise line's motion to compel arbitration of a seaman's injury-related claims, finding that the worker failed to show that an arbitration clause in his employment contract was against public policy (Aleixo Estibeiro v. Carnival Corp., No. 12-22713, S.D. Fla.; 2012 U.S. Dist. LEXIS 143058).
WEST PALM BEACH, Fla. - Personal jurisdiction exists over an employee of two insolvent insurers in a breach of fiduciary duty lawsuit, a Florida federal bankruptcy judge held Sept. 28, finding that the employee has not shown that exercise of personal jurisdiction over him fails to comport with concepts of fair play and substantial justice (In re: British American Insurance Co. Ltd. v. Robert Fullerton, et al., No. 11-03118, S.D. Fla. Bkcy.; 2012 Bankr. LEXIS 4528).
ATLANTA - A federal judge in Florida properly applied Section 502(g)(1) of the Employee Retirement Income Security Act, 29 U.S.C.S. § 1001 et seq., to deny attorney fees to both a pension plan and its participant who challenged the plan's vesting calculation, after the parties settled their dispute, the 11th Circuit U.S. Court of Appeals affirmed Sept. 27 in an unpublished opinion (Melissa C. Cross v. The Quality Management Group, LLC, et al., No. 11-15146, 11th Cir.; 2012 U.S. App. LEXIS 20250).
COLUMBUS, Ohio - A group of reinsurers argued in an Ohio federal court on Oct. 1 that an insurer's motion to dismiss the reinsurer's complaint is duplicative of the insurer's motion to change venue of the suit to a Florida federal court (Certain Underwriters at Lloyd's, London Purportedly at Interest v. Stonebridge Casualty Insurance Company, No. 12-cv-00160, S.D. Ohio). Subscribers may view the brief available within the full article.
GAINESVILLE, Fla. - A federal judge in Florida on Sept. 26 ruled that additional briefing is necessary to determine whether jurisdiction exists over an insurance coverage dispute concerning an underlying construction defect lawsuit (Admiral Insurance Co. and CB contractors LLC v. Florida State Plastering Inc., et al., No. 12-00076, N.D. Fla.; 2012 U.S. Dist. LEXIS 137846).
TAMPA, Fla. - The makers and installers of a kit that transforms inexpensive vehicles into knockoff Bentleys will stand trial on charges by the luxury auto maker of design patent and trademark infringement, a Florida federal judge ruled Sept. 26 (Bentley Motors Ltd. v. Matthew McEntegart et al., No. 12-1582, M.D. Fla.; 2012 U.S. Dist. LEXIS 138141).