Friday, December 3, 2010

Party Sanctioned For Failure To Appear At Appellate Mediation

In Mash v. Lugo (5D10-2256), the Fifth District sanctioned one of the appellees for failure to appear at appellate mediation.  The appellant moved for sanctions after the appellee failed to appear.  The court stated:
In response to Mash's motion, appellees' counsel filed affidavits averring that Lugo's and Irizarry's insurer, Aequicap Insurance Company, held the exclusive right to decide to defend or settle any claim or suit within policy limits, that Lugo and Irizarry did not have the authority to bind the insurer to any settlement, and that attorney Muniz had full settlement authority on behalf of the insurer. We grant the motion.
Florida Rule of Appellate Procedure 9.720(a) provides that unless excused by the court, a party is deemed to appear at a mediation conference if the following persons are physically present or appear electronically upon agreement of the parties:
(1) The party or its representative having full authority to settle without further consultation.

(2) The party's trial or appellate counsel of record, if any. If a party has more than one counsel, the appearance of only one counsel is required.

(3) A representative of the insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to settle without further consultation.
Here, neither appellee appeared, nor did any representative of their insurance carrier. These individuals' appearance was not excused by court order, nor was there an agreement that they could appear electronically.

Appellees' counsel's claim that he had full authority to settle the case on behalf of the insurer does not excuse the failure to attend of the appellees and a representative of their insurer. (By its express terms, subsection (a)(3) excludes an insurer's outside counsel from being considered the insurance carrier's representative.)
The court ordered the appellee that failed to appear to pay the entire cost of the mediation plus the reasonable attorneys fees and costs for the appellant incurred in preparing for and attending the appellate mediation and filing the motion for sanction


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