In this appeal, we consider whether a Plaintiff who agreed to stay litigation brought pursuant to the Employee Retirement and Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), and participate in a voluntary claim reassessment process with a Defendant insurer, is entitled to recover attorney’s fees for work done in that process. We conclude that the claim reassessment process at issue in this appeal is substantially similar to the pre-litigation administrative proceedings required by ERISA. Because we conclude that attorney’s fees and costs are not recoverable for pre-litigation administrative procedures under 29 U.S.C. § 1132(g)(1), they are not available for this claim reassessment process. We also conclude that the district court did not abuse its discretion in limiting the amount of the Plaintiff’s recovery of attorney’s fees and costs for preparation of the motion for fees and costs.
Tuesday, March 31, 2009
Plaintiff in ERISA Action Not Entitled to Fees Incurred During Stay For Voluntary Claim Reassessment
Judgment as to Liability Only is Not a Final Order
because the instant order does not bring an end to the litigation below, this order is not final. See Caufield v. Cantele, 837 So. 2d 371, 375 (Fla. 2002) (reaffirming traditional test of finality that a "final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary."); Hernando County v. Leisure Hills, Inc., 648 So. 2d 257 (Fla. 5th DCA 1994) (holding that issue of damages is so intertwined with substance of a claim as to render an order reserving jurisdiction to determine damages nonfinal).
Sunday, March 29, 2009
Questions Presented to Supreme Court this Term
Equitable Esoppel Bars Debtor From Challenging Pre-Petition Obligation in Bankruptcy Court
Saturday, March 28, 2009
Power of Attorney Did Not Provide Authority to Agree to Arbitration
Examining the POA executed here by Milo, we conclude that the language specifically refers to the rights, duties, and powers that Brito may exercise on behalf of Milo. But the language does not "unambiguously make[] a broad, general grant of authority" to Brito. See id. Our review of the language of the POA seemingly indicates that it specifically granted authority to Brito related solely to Milo's property interests. Accordingly, McKibbin controls, and we must affirm the trial court's denial of appellants' motion to compel arbitration.
Lawsuit Improper Prior to Appraisal of Hurricane Damage
Moore’s request for twenty percent general contractor costs in the calculation of actual cash value is a request for an increase in the determination of the loss. It does not relate to coverage in addition to the loss. Therefore, under the terms of the homeowners policy, Moore must first comply with the appraisal provision to determine his amount of loss. He is contractually bound to do so. At that time, he may or may not establish that “twenty percent general contractor costs” be included in the “actual cash value” of his damages.
As no appraisal has as yet taken place to resolve this matter, Moore’s complaint fails to state a claim upon which relief can be granted. The judgment of the district court is Affirmed.
Out of State Lawyers Subject to Florida's Personal Jurisdiction
Under Becker, the tort of legal malpractice in the instant case accrued in Florida where Beta, a Florida corporation, alleges it suffered $750,000 in damages as a direct result of Mintz and Fraade’s negligence. Though Mintz and Fraade performed most of the necessary legal services from a New York office, they caused allegedly faulty Acquisition Articles to be filed in Florida which caused injury to Beta. Thus, Mintz and Fraade committed a tortious act in Florida within the meaning of section 48.193(1)(b), Florida Statutes, and their actions are within the ambit of the long-arm statute.
Mintz and Fraade also have sufficient minimum contacts with Florida to satisfy the due process requirement. This prong is satisfied “if the defendant purposefully directs activities at Florida and litigation arises out of those activities, or the defendant purposefully avails himself of the privilege of conducting activities within the forum state.” Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So. 2d 716, 719 (Fla. 4th DCA 1998). Mintz and Fraade performed the necessary legal work for the formation of two Florida LLCs created for the purpose of acquiring the assets of an existing Florida corporation. Beta claims Mintz and Fraade were negligent in their performance, and thus, that they are liable for legal malpractice and breach of fiduciary duty. Beta’s claims arise from the activity Mintz and Fraade directed into the state of Florida. A reasonable person having conducted the activities conducted by Mintz and Fraade in the present case would reasonably foresee being haled into court in Florida should an issue regarding the very formation of Beta arise.
Consent Required for Special Magistrate
Consent of the parties is required to refer any matter to a special magistrate. See Fla. R. Civ. P. 1.490(c). See also Pesut v. Miller, 773 So. 2d 1185 (Fla. 2d DCA 2000); Miller v. Lifshutz, 558 So. 2d 195 (Fla. 4th DCA 1990). Concomitantly, if a party withdraws his consent, as Gielchinsky did here with good cause due to financial reasons, then it logically follows that the matter is no longer appropriate for a special magistrate.
Sunday, March 15, 2009
Eleventh Circuit Affirms District Court's Dismissal In ERISA Botox Case
*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.
ERISA Case Dismissed For Missing Statute Of Limitation
Merriken v. Am. Maritime Off. Vacation Plan, Et Al, 08-60687, 2008 WL 4899126, (S.D. Fla. Sept. 29, 2008)
*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.
Injunction Reversed for Improper Notice
The decision is below:
Wavestone Props., LLC v. Fortune Dev. Sales Corp., 978 So.2d 830 (Fla. 3d DCA 2008)
The oral argument that took place in this appeal is below:
*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.
Thursday, March 12, 2009
Removing Party Entitled to Correct Procedural Defect in Removal Petition
Tuesday, March 10, 2009
Eleventh Circuit Certifies Five Insurance Questions
(2) If Florida law recognizes a claim for breach of the implied warranty of good faith and fair dealing based on an insurer’s failure to investigate and assess its insured’s claim within a reasonable period of time, is the good faith and fair dealing claim subject to the same bifurcation requirement applicable to a bad faith claim under Fla. Stat. § 624.155?
(3) May an insured bring a claim against an insurer for failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a)?
(4) Does an insurer’s failure to comply with the language and type-size requirements established by Fla. Stat. § 627.701(4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable?
(5) Does language in an insurance policy mandating payment of benefits upon “entry of a final judgment” require an insurer to pay its insured upon entry of judgment at the trial level?
Appraisal, Overhead and Profit and Fees
Confirmation of Appraisal Award Does Not Determine Liability
Insurer Entitled to Deduct Prior Payment and Deductible from Appraisal Award
Where, as here, the appraisers set the overall amount of the loss, but do not reduce the award for prior payments or the deductible, the insurer is entitled to make those deductions.