Sunshine Law Gives Right To Attend Public Meeting, Not Speak At Them

In Keesler et al. v. Community Maritime Park Associates, Inc. (1D09-1659), the First District held "that section 286.011(1), Florida Statutes (the Sunshine Law), gives Appellants the right to be present but not to speak at CMPA meetings."  Articles can be found in the Tallahassee Democrat, Miami Herald and the Pensacola News Journal.

Order Requiring Disclosure Of Salary Paid To Florida Power Executives Reversed

In Florida Power & Light Company, et al v. Florida Public Service Commission (1D09-4779), the First District reversed a decision of the Florida Public Service Commission requiring Florida Power to disclose the salary of certain of its executives.  The Court stated:

The Commission’s order denied Petitioners’ request to treat certain employee compensation information as confidential and exempt from public disclosure under Florida’s Public Records Law. Florida Power & Light Company (Florida Power) also petitions for a writ of certiorari to quash a similar order entered by the Commission regarding its employees’ compensation information. Florida Power’s employees petition for a writ of mandamus to prevent the disclosure of their compensation information, arguing such disclosure would violate their right to privacy guaranteed by Article I, section 23 of the Florida Constitution.

Progress Energy and Florida Power included employee compensation as costs associated with the increased rate change. Information relating to the rates or costs of services is relevant in a ratemaking proceeding for discovery purposes. § 366.093(2), Fla. Stat. Discovery in a ratemaking proceeding is governed by Florida Rule of Civil Procedure 1.280. See id.

Due to the request for a rate increase that was partially based upon salaries:

the Commission’s staff issued a series of interrogatories requesting the following information for all Progress Energy and Florida Power employees who earned $165,000 or more per year: name and title; base salary; overtime; bonuses; stock options; option awards; non-equity incentive plan compensation; all other compensation; total compensation; amount of total compensation allocated to the utility; and amount of total compensation included in adjusted jurisdictional other operation and management expenses.

The commission filed motions to compel the information, hearings were held and the commission ordered the companies to produce the information.  The First District reversed, stating:

The Commission denied Progress Energy’s and Florida Power’s confidentiality requests after construing sub-subsection (f) to expressly exclude compensation information from the definition of proprietary confidential business information. The Commission found the statute was unambiguous, but went on to find that even if the statute were ambiguous, the specific provisions of sub-subsection (f) prevailed over the general definition in subsection (3). As explained below, the Commission’s interpretation of section 366.093(3)(f) is clearly erroneous; therefore, we must depart from the Commission’s construction. See PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988) (explaining the Commission’s construction of statute it is charged with enforcing is entitled to great deference and the court will not depart from such construction unless clearly erroneous).

Florida Supreme Court Unanimously Elects Justice Canady To Be Next Chief

 

The Florida Supreme Court released a press release today announcing that Justice Charles T. Canady was unanimously elected to be the next Chief Justice of the Florida Supreme Court.  The press release noted, among other things, the following:

Canady will become Florida's 54th Chief Justice since statehood, and his two-year term will begin July 1. Under the state Constitution, the Chief Justice serves as the chief administrative officer of the entire state courts system.

Supreme Court Upholds Ban On Certain Lawyer Advice In Bankruptcy

The Supreme Court released its opinion today in Milavetz, Gallop & Milavetz, P. A. v. United States.  Justice Sotomayor wrote the opinion for the Court and stated:

Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA or Act) to correct perceived abuses of the bankruptcy system. Among the reform measures the Act implemented are anumber of provisions that regulate the conduct of “debt relief agenc[ies]”—i.e., professionals who provide bankruptcy assistance to consumer debtors. See 11 U. S. C. §§101(3), (12A). These consolidated cases present the threshold question whether attorneys are debt relief agencies when they provide qualifying services. Because we agree with the Court of Appeals that they are, we must also consider whether the Act’s provisions governing debt relief agencies’ advice to clients, §526(a)(4), and requiring them to make certain disclosures in their advertisements, §§528(a) and (b)(2), violate the First Amendment rights of attorneys. Concluding that the Court of Appeals construed §526(a)(4) too expansively, we reverse its judgment that the provision is unconstitutionally overbroad. Like the Court of Appeals, we uphold §528’s disclosure requirements as applied in these consolidated cases.

Articles can be found at the following links: Reuters; Wall Street Journal Law Blog; and the New York Times.

"Fla. Insurance Case Could Set Precedent for Hurricane Claims"

Jordana Mishory had an article in the Daily Business Review titled "Fla. Insurance Case Could Set Precedent for Hurricane Claims."  The article relates to a case heard by the Florida Supreme Court last week, Chalfonte Condominium Apartment Assoc., Inc. v. QBE Insurance Corp.  The oral argument took place on Thursday and can be viewed at THIS link and an unofficial transcript can be viewed at THIS link.  The case was previously discussed when it was certified to the Florida Supreme Court by the Eleventh Circuit and that post can be viewed HERE.  The questions certified 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?

The briefs and opinions from the various courts are below:

Florida Supreme Court

*QBE's Intitial Brief
*Chalfonte's Answer Brief
*QBE's Reply Brief
*Amicus Brief of Florida Justice Association
*Amicus Brief of United Policyholders
*Amicus Brief of Florida Defense Lawyers Association

Eleventh Circuit
 
*Chalfonte's Initial Brief
*QBE's Answer Brief
*Chalfonte's Reply Brief
*QBE's Notice of Filing Supplemental Authority
*Eleventh Circuit Opinion
 
District Court
 
*Chalfonte v. QBE, 526 F. Supp. 2d 1251 (S.D. Fla. 2007)
*Order Granting in Part and Denying in Part Motion for Attorneys Fees (2-29-2008)
*Order Denying Chalfonte's Motion to Enforce Final Judgment (1-23-2008)
*Order Denying QBE's Motion for JNOV (12-18-2007)
*Order Denying QBE's Motion for New Trial (10-9-2007)
*Order on QBE's Motion for Summary Judgment, Case 9:06-cv-81046-DMM, 2007 WL 2225972 (S.D. Fla. Aug. 1, 2007) (Also HERE)
*Order on QBE's Motion to Dismiss Re Count IV (5-18-2007)
*Chalftonte's Amended Complaint (3-8-2007)

Florida Supreme Court Stays Execution Of David Eugene Johnston

After hearing oral argument earlier in the day, the Florida Supreme Court stayed the execution of David Eugene Johnston and reversed the summary denial of his post conviction motion. The two page 5-2 order can be viewed HERE.  The court stated:

Having reviewed the record in this case, including prior proceedings, we reverse the summary denial of Johnston's newly discovered evidence claim relating to mental retardation and temporarily relinquish jurisdiction to the circuit court for thirty days for an evidentiary hearing to be held on the issue of whether newly discovered evidence indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), section 921.137, Florida Statutes (2009), and Cherry v. State, 959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this appeal until jurisdiction returns to this Court after the relinquishment. 

Articles can be found at the following links: Orlando Sentinel; Associated Press; UPI; Miami Herald.  Additionally, the briefs in the case, all filed since March 1, 2010, are below:

*Notice of Appeal

*Johnston's Initial Brief on Appeal

*Florida's Answer Brief

*Johnston's Reply Brief

“Usual and Customary Provider Charges”

In Baker County Medical Services v. Aetna Health Management, LLC (1D08-0067), the First District addressed the following issues:

Baker County Medical Services, Inc. (BCMS), appeals a final judgment interpreting section 641.513(5)(b), Florida Statutes (2006). BCMS raises two issues on appeal. First, BCMS argues that the trial court erred in ruling that the term “provider” in section 641.513(5)(b) is not limited to any specific type of provider. We disagree and affirm on the first issue. Second, BCMS argues that the trial court erred in ruling that the phrase “usual and customary provider charges” in section 641.513(5)(b) includes consideration of the amounts billed by providers, as well as the amounts accepted by providers as payment. We agree in part and reverse with directions on the second issue.

The court held that the amount to be paid by an HMO to an emergency facility it does not have an agreement with should be determined by the fair market value and not based upon the amount charged.  The court stated:

BCMS asserts that the “usual and customary charges” include only the amounts billed or the charge master rates. The term “charges” is not defined in section 641.513(5). When a statute does not define a term, we rely on the dictionary to determine the definition. See Green v. State, 604 So. 2d 471, 473 (Fla. 1992). “Charge” is defined as a “[p]rice, cost, or expense.” BLACK’S LAW DICTIONARY 248 (8th ed. 2004). In paragraph (5)(a), the term “charge” is modified by the terms “usual” and “customary.” “Usual” is defined as “[o]rdinary; customary” and “[e]xpected based on previous experience.” Id. at 1579. “Customary” is defined as “[a] record of all of the established legal and quasi-legal practices in a community.” Id. at 413. In the context of the statute, it is clear what is called for is the fair market value of the services provided. Fair market value is the price that a willing buyer will pay and a willing seller will accept in an arm's-length transaction. See United States v. Cartwright, 411 U.S. 546, 551 (1973).

The oral argument that took place in the case on January 20, 2009 is below:

*Disclaimer: GrayRobinson, P.A. was involved in this action.

Chief Justice Roberts Denies Request To Stay D.C. Same-Sex Marriage Law

In  Jackson, et al v. District of Columbia Board of Elections and Ethics et al (09A807), Chief Justice Roberts released an in chambers opinion today refusing to block a District of Columbia law that will allow same-sex marriage.  Chief Justice Roberts stated:

The D. C. Charter specifies that legislation enacted by the D. C. Council may be blocked if a sufficient number of voters request a referendum on the issue. D. C. Code §1–204.102. The Council, however, purported in 1979 to exempt from this provision any referendum that would violate the D. C. Human Rights Act. See §§1–1001.16(b)(1)(C), 2–1402.73 (2001–2007). The D. C. Board of Elections, D. C. Superior Court, and D. C. Court of Appeals denied petitioners’ request for a referendum on the grounds that the referendum would violate the Human Rights Act.

Articles can be found at the following links: CBS News; Reuters; Washington Post;  Business Week; CNN; and Fox News.

Don't Forget To File An Appendix With Your Brief

In Reliance Property Management, Inc. v. Transportation Equipment Specialists, Inc. (3D09-411), the Third District affirmed the decision under review because the appellant did not file an appendix with its initial brief.  The court stated "In the absence of the filing of an appendix in support of this appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(A), the order under review is affirmed."