Injunction Reversed for Improper Notice

In a proceeding supplementary case, the Third DCA in Wavestone Props., LLC v. Fortune Dev. Sales Corp., 978 So.2d 830 (Fla. 3d DCA 2008) "reverse[d] the temporary injunction against 17315, and the order impressing the judgment lien upon the property owned by 17315. We do so because the request for this relief had not been noticed for hearing, and there was a timely objection on this ground." The court also held that it was improper to enter an injunction when the relief was not requested in a motion.

As to piercing the corporate veil, which was reversed for the procedural issues discussed above, the court gave no opinion other than to state that any attempt to pierce the corporate veil "must satisfy the standards of Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114 (Fla. 1984)."

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:

Argument 

Response

Rebuttal

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Removing Party Entitled to Correct Procedural Defect in Removal Petition

In Corporate Management Advisors v. Artjen Complexus (08-14606), the Eleventh Circuit reversed the District Court's sua sponte remand order. The defendant removed the case from state court to federal court, however, only alleged the residency of the plaintiff as opposed to the citizenship of the plaintiff. Based upon the defect in the removal petition, the District Court remanded the case. The Eleventh Circuit reversed and held that failure to properly establish citizenship in the removal petition is a procedural defect and the districts court cannot remand a matter based upon a procedural defect absent a motion timely filed by a party. Further, the court instructed the district court to allow the defendant to correct the procedural defect on remand.

Eleventh Circuit Certifies Five Insurance Questions

Yesterday, the Eleventh Circuit certified five questions to the Florida Supreme Court. The Eleventh Circuit's opinion in Chalfonte Condominium Apartment Assoc., Inc. v. QBE Insurance Corp. (08-10009) can be found here and the five questions are below.

(1) Does Florida law recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured against its insurer based on the insurer’s failure to investigate and assess the insured’s claim within a reasonable period of time?

(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

In Goff v. State Farm Florida Ins. Co., 999 So. 2d 684 (Fla. 2d DCA 2008), the Second District addressed a number of issues that constantly appear in the Florida appellate courts. Goff filed a lawsuit and State Farm moved to compel appraisal. Among the court's holdings were:

1.) Confirmation of an appraisal award is not necessary after payment has been made;

2.) Attorneys fees against an insurer can be awarded even if no judgment is entered;

3.) "Actual cash value includes overhead and profit where the insured is reasonably likely to need a general contractor for repairs.";

4.) An insurer is entitled to withhold the depreciated amount of overhead and profit until the repairs are actually completed.

Confirmation of Appraisal Award Does Not Determine Liability

In State Farm Florida Ins. Co. v. Hill, 1 So.3d 1272 (Fla. 2d DCA 2009), the Second DCA vacated a circuit court order that purported to be a final judgment after the confirmation of an appraisal award. The court held the order did not clearly dispose of all issues in the case. Confirmation of an appraisal award merely determines the amount of loss and does not determine whether the insurer is liable for the damages. Therefore, judgment should not be entered based upon the confirmation of an appraisal award if coverage challenges exist.

Insurer Entitled to Deduct Prior Payment and Deductible from Appraisal Award

In Citizens Property Insurance Corp. v. Cuban Hebrew Congregation of Miami, Inc. (3D08-1325), the Third DCA reviewed the circuit court's order that determined Citizens was not entitled to deduct prior payments or the deductible from an appraisal award. The Third DCA reversed and concluded that an insurer is entitled to deduct those amounts from the amount paid to the insured. The court stated:

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.

Untimely Bad Faith Claim

An action for bad faith cannot be brought prior to the conclusion of the underlying first party insurance claim. In North Pointe Ins. Co. v. Tomas, 999 So.2d 728 (Fla. 3d DC 2008), the Third DCA held "[w]e grant the petition for writ of certiorari and quash the order below on grounds that the action for breach of contract, which remains pending below for a determination of damages relating to the allegations of North Pointe's breach of the insurance contract, renders premature the cause of action for bad faith."

Good Faith Efforts Required By Plaintiff's Counsel Prior to Filing Suit

The Eleventh Circuit affirmed the denial of attorneys fees to the prevailing party even though fees were provided for by statute because the plaintiff's attorneys did not contact opposing counsel prior to suit-"And the lawyer for Plaintiff made absolutely no effort -- no phone call; no email; no letter"- [click for opinion]. While the opinion may have limited application, the introductory paragraph is very broad and states "[t]his appeal is about the power of a district court to supervise the work of the lawyers who practice before it."

Dismissal with Prejudice Proper When Amendment Would be Futile

Stander v. Dispoz-O-Products, Inc., 973 So. 2d 603 (Fla. 4th DCA 2008) is a January 2008 opinion from the Fourth District, but the point made by Judge Emas in dissent is a good one:

Stander's appeal merely seeks review of the trial court's order which found, as a matter of law, no such cause of action could be pled. Second, to the extent the issue of amendment has impliedly been raised on appeal, the transcript of the hearing on the motion to dismiss plainly reveals that seeking leave from the trial court to amend the complaint would have been a futile and useless act, given the trial court's determination that no valid cause of action could ever be pled. The law does not require a futile or useless act, see Haimovitz v. Robb, 130 Fla. 844, 178 So. 827, 830 (1937); Young v. State, 664 So.2d 1144, 1145 (Fla. 4th DCA 1995), and imposing such a requirement in this case is contrary to reason and does not advance the underlying purpose for the rule articulated in Merkle.