Monday, August 3, 2009

The Eleventh Circuit on Erie and the Impact of Decisions From Florida's Intermediate Appellate Courts

In Bravo v. U.S. (06-13052), the Eleventh Circuit denied a motion for rehearing but clarified "the methodology to be used in determining state law when there is no decision of the state supreme court on point."

After discussing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938), the court stated "federal courts are bound by decisions of a state’s intermediate appellate courts unless there is persuasive evidence that the highest state court would rule otherwise.”

One of the earliest, if not the earliest, pronouncements of our circuit in this area of the law came in Putman v. Erie City Mfg. Co., 338 F.2d 911 (5th Cir. 1964)...We had this to say about how a federal court should decide what to do when there were “cross-currents” in state intermediate appellate court decisions:

The case before us presents the type of situation Judge Clark has described as the most troublesome, the most unsatisfying in its consequences of all the situations in which Erie requires a federal court to ascertain state law. Here, although the trend in Texas may be as evident as Judge Levet found it to be, there is no decision of the Texas Supreme Court on the question at issue. The Court is forced, therefore, to look to all available data; for example, to such sources as the Restatements of Law, treatises and law review commentary, and the majority rule, keeping in mind that it must choose the rule which it believes the state court, from all that is known about its methods of reaching decisions is likely in the future to adopt.

Id. at 917.

We are, of course, bound to follow the instructions of the Supreme Court and our prior panel precedent on this matter, and nothing in our original opinion should be read to the contrary. It follows that we are “bound” to follow an intermediate state appellate court “unless there is persuasive evidence that the highest state court would rule otherwise.”

The dissent states:

I also have no quarrel with the general principle that we are bound by decisions of Florida intermediate state appellate courts unless there is persuasive evidence that the Florida Supreme Court would rule otherwise. See King v. Order of United Commercial Travelers of Am., 333 U.S. 153, 158, 68 S. Ct. 488, 491(1948). The problem here is that after recognizing these axioms, the majority then disregards the very Florida law that binds us.

In Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008), the majority concluded that when reviewing Florida personal injury verdicts for excessiveness by considering the general trend and philosophy of similar cases, the comparative analysis must be confined to the published Florida appellate decisions in the judicial district in Florida where the case would have been heard if brought in state court. 532 F.3d at 1164. As far as I can determine, no Florida court has ever so held. I find no other appellate court, Florida or federal, that has so limited itself...The relevant case law demonstrates that in their excessiveness reviews, Florida state and federal courts have not only considered unpublished as well as published decisions, but also have considered decisions from outside Florida, let alone decisions from outside the relevant DCA in Florida.


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