Arbitration Clause Only Enforceable as to Claims Party Agreed to Arbitrate

Today, in Tubbs v. Hudec (2D08-3477) the Second DCA reversed an order compelling arbitration. The reversal was based upon the fact that "no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate. United Vacation Network, Inc. v. Tahiri, 987 So. 2d 244, 246 (Fla. 2d DCA 2008). The parties' intent regarding arbitration is discerned from the language of the agreement containing the arbitration clause. Id." The arbitration agreement in question only applied to indemnification claims and, therefore, the circuit court should not have compelled arbitration.

Any Party on Notice of Attorney Lien has Duty to Protect Rights of Lienor

On rehearing in Hall, Lamb & Hall, P.A. v. Sherlon Investments Corp. (3D07-2783) the Third DCA held that to perfect a charging lien "the lienor-attorney need only demonstrate that he or she provided the parties to the litigation with timely notice of the interest." When both plaintiff and defendant are aware of the attorney lien, both are responsible to inform the lienor, or the court, in order to protect the lienors rights.

Strict Compliance Required for Attorneys Fees Pursuant to 57.105

In Anchor Towing, Inc. v. Fla. Dept. of Transp. (3D08-1720) the Third DCA reversed an award of attorneys fees awarded pursuant to Section 57.105, Florida Statutes. The party failed to send the motion required by statute with the demand letter. The court held:

The letter that Sunshine’s counsel sent to Anchor’s counsel threatening to seek attorney’s fees does not meet the mandatory notice requirements of section 57.105(4). The letter sent to opposing counsel is not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with the court. Nathan v. Bates, 998 So. 2d 1178, 1179 (Fla. 3d DCA 2008) ("The statute . . . clearly provides for a motion, not a letter."). Filing the motion with the court after the proceedings concluded also does not comply with the statute, as Anchor did not then have the statutorily required twenty-one days in which to withdraw the objected to
claims. O’Daniel v. Bd. Of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2006) (striking attorney’s fees under section 57.105(4) where the defendant waited until the case was over to file its fee motion).

Claim for Breach of Fiduciary Duty Cannot Be Brought After Claim for Breach of ERISA Benefits Fails

In its second opinion on the same claim, the Eleventh Circuit held the plaintiff could not assert a breach of fiduciary duty claim after she had previously failed on her claim for breach of ERISA benefits. The first opinion in Burroughs v. BellSouth Telecommunications, 248 Fed. App. 64 (11th Cir. 2007) can be found here and the second opinion can in Burroughs v. Broadspire can be found here. In the Burroughs v. Broadspire opinion released on April 15, 2009, the Court held:

After reviewing the record and reading the parties briefs, we see no reversible error. Burroughs’ claims in the instant case are virtually identical to her criticisms of Broadspire in Burroughs I. Burroughs cannot state a claim for breach of fiduciary duties where she was able to assert a claim for an appropriate remedy for the denial of benefits under ERISA § 502(a)(1)(B). See Varity Corp. v. Howe, 516 U.S. 489 (1996). We have held multiple times, under these circumstances, a breach of fiduciary duty claim cannot be asserted. See Ogden v. Blue Bell Creameries, U.S.A., Inc., 348 F.3d 1284 (11th Cir. 2003); Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084 (11th Cir. 1999).

Alternatively, under both claim and issue preclusion, our earlier decision in Burroughs I holding that Broadspire was neither arbitrary nor capricious precludes Burroughs from continuing to assert claims against Broadspire based on the same 2004 benefit decision. Accordingly, for the aforementioned reasons, we affirm the judgment of dismissal.

The Difference Between Cancellation and Non-Renewal of an Insurance Policy

In Waters v. Miller (08-14072), a published opinion released by the Eleventh Circuit on April 15, 2009, the Eleventh Circuit affirmed the district court. The court distinguished cancelling an insurance policy from the situation when the insured does not renew the policy. The court stated:

Critical to this case, each motor carrier must maintain a liability insurance policy in full force and effect and the policy “may not be canceled on less than 30 days’ written notice by the insurer to the [FDHSMV].” Fla. Stat. § 320.02(5)(e).

As the district court found, Florida Statutes section 320.02(5)(e) applies when an existing policy is cancelled, but not when a policy expires because of non-renewal by the insured. The distinction between these two terms is recognized by insurance treatises and Florida law. See 3-16 Holmes’ Appleman on Insurance 2d § 16.7 (2009) (“[Cancellation] is to be distinguished from the use of the term ‘termination’ . . . .”); 2 Couch on Insurance § 30:2 (3d ed. 2008) (“The right to cancel is distinct from a policy’s lapse, or expiration by its own terms.”); Safeco Ins. Co. v. Oehmig, 305 So. 2d 52, 54 (Fla. 1st DCA 1974) (construing a “notice of cancellation” required by Florida Statutes section 627.728, which expressly distinguishes between cancellations and nonrenewals). By the plain terms of the Florida statute, we find Progressive’s failure to notify the FDHSMV of the Policy’s expiration did not result in the continuation of insurance coverage beyond September 11, 2005. Accordingly, we affirm the district court’s order granting summary judgment to Progressive on the state law issue.

Permanent Injunction Must Specify Reasons for Entry

In Premier Lab Supply, Inc. v. Chemplex Indus., Inc. (4D07-3933) the Fourth DCA reversed the entry of a permanent injunction because "Based on the clear wording of the rule [Rule 1.610 (c)], the specificity requirement applies to both temporary and permanent injunctions." The injunction failed to specify the reasons for its entry and, therefore, was improper. The court also discussed trade secrets and the plaintiff's successful claim.

Venue Proper Where Money Due

When a contract involves the payment of money and no place of payment the payment is due where the creditor resides. Therefore, in Treasure Coast Tractor Service, Inc. v. JAC General Constr., Inc. (4D08-4166) the Fourth DCA reversed and remanded for a transfer to St. Lucie County where the movant filed an affidavit stating all prior payments had been in St. Lucie County and the opposition did not file any counter evidence.

Computer Software is not Tangible Property

The Fourth DCA joined the anti-tax protests on April 15, 2009 and affirmed the circuit court's decision that Palm Beach County could not tax computer software owned by Verizon Wireless. The court in Nikolits v. Verizon Wireless Personal Communications, L.P. (4D08-1389) held:

A close examination of the definition of tangible personal property contained in section 192.001 compels the same result. In particular, that definition states that tangible personal property is “all goods, chattels, and other articles of value . . . capable of manual possession and whose chief value is intrinsic to the article itself.” § 192.001(11)(d). Although computer software’s value is intrinsic in and of itself, as the “essence of the property is the software itself, and not the tangible medium on which the software might be stored,” Gilreath, 751 So. 2d at 708, it is property incapable of manual possession. This is because, software, itself, is “not capable of being ‘seen, weighed, measured, felt or otherwise perceived by the senses.’” Id. (quoting Dallas Cent. Appraisal Dist. v. Tech Data Corp., 930 S.W.2d 119, 122 (Tex. App. 1996)). Rather, the tangible medium on which it is transported and transmitted is the means by which the property is manually possessed.

Therefore, we agree with the Fifth District’s decision in Gilreath and hold that “computer software” is intangible personal property. As such, we affirm the trial court’s decision that the Wireless Services Software is not taxable by Palm Beach County, as it is intangible personal property, which is property outside a county’s taxing authority.

Proposal for Settlement Valid Beyond Thirty Days

In another opinion relating to a proposal for settlement, the Fourth DCA disagreed with the appellants argument that a request for an extension of time to accept the offer invalidates the offer. In Baratta v. Bradford Electric, Inc. (4D08-968) the court held that nothing prevents an offeree from accepting an untimely acceptance. As long as there is an offer, acceptance and meeting of the minds the settlement is binding. A brief explanation of proposals for settlement and the holding are below:

Bradford made its offer of settlement by referring to section 768.79 and rule 1.442. Although the plain meaning of the statute and the rule of procedure clearly contemplate strict compliance, the statute and the rule implementing the statute apply only when there has been a rejection of a proposal for settlement and the case goes to trial resulting in a judgment. Depending upon which party is making the proposal for settlement, if the final judgment is either twenty-five percent less or twenty-five percent more than the proposal for settlement, only then are the sanctions of attorney’s fees and costs applicable. See § 768.79.

As noted in Wright v. Caruana, 640 So. 2d 197 (Fla. 3d DCA 1994), neither section 768.79 nor rule 1.442 prevents an offeree from actually accepting an untimely offer and avoiding trial. Rather, it me rely prevents the offer from later serving as a basis for an award of costs and attorney’s fees under the statute. Id. at 198-99; accord Hanzelik v. Grottoli & Hudon Inv. of Am., Inc., 687 So. 2d 1363, 1366 (Fla. 4th DCA 1997). In the instant case, there were exchanges of offers and counter offers and a final acceptance by Baratta. There is substantial, competent evidence to support the trial court’s determination that there was a meeting of the minds. An offer and acceptance took place and, therefore, the settlement should be enforced.