Second District On Waiver Of Right To Counsel And "Warning To Supsect" Cards

In State v. Fletcher (2D08-4646), the Second District distinguished its decision two years ago in Powell v. State, 969 So. 2d 1060 (Fla. 2d DCA 2007) because in the Fletcher case the defendants were properly warned of their rights.  Since the Second District released its decision in Powell, the Florida Supreme Court affirmed [State v. Powell, 998 So. 2d 531 (Fla. 2008)] and the United States Supreme Court has since granted certiorari [Florida v. Powell, No. 08-1175, 2009 WL 741877 (U.S. June 22, 2009)].  The Supreme Court docket can be found here  and the SCOTUS Wike page here.

With regard to the Fletcher case, the Second District stated:

In Powell, Mr. Powell was given Miranda warnings that informed him only that he had the right to talk to a lawyer before answering any questions. State v. Powell, 998 So. 2d 531, 541 (Fla. 2008). This court and the Florida Supreme Court explained in their respective Powell decisions that such an instruction did not satisfy Miranda because it could mislead a suspect to believe that he did not have a right to the advice and counsel of an attorney during questioning. Id.

However, Mr. Fletcher and Mr. Lee signed "Warnings to Suspects" cards which state, "You have the right to the presence of an attorney." This unrestricted warning is distinguished from the one given in Powell and identical to language recently approved by this court in State v. Smith, 6 So. 3d 652, 653 (Fla. 2d DCA 2009) (holding that the statement satisfied the constitutional requirements set forth in Miranda because it did not limit the time during which the defendant could exercise his right to counsel). See also Graham v. State, 974 So. 2d 440 (Fla. 2d DCA 2007), review denied, 984 So. 2d 1250 (Fla. 2008) (same).

Defendant Did Not "Consent" To Search While Already Handcuffed

In Ballenger v. State (2D08-3934), the Second District reversed because the police conducted an unconstitutional pat-down search.  In addition to other issues relating to the search, the court stated:

The State counters that because Ms. Ballenger gave the second deputy permission to seize the crack pipe after he felt it in her pocket, she had consented to its seizure, rendering it constitutional. Consent is one of the few exceptions to the warrant requirement. V.H. v. State, 903 So. 2d 321, 322 (Fla. 2d DCA 2005). "The question of whether a consent is voluntary is a question of fact to be determined from the totality of the circumstances." Reynolds, 592 So. 2d at 1086. Further, " 'the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.' " Id. (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)). Although the State normally must prove voluntariness of consent only by a preponderance of the evidence, "[w]here there is an illegal detention or other illegal conduct on the part of the police, a consent will be found voluntary only if there is clear and convincing evidence that the consent was not a product of the illegal police action." Id. (citing Norman v. State, 379 So. 2d 643, 647 (Fla. 1980)).

***

Although the Florida Supreme Court has been "reluctant to hold that consent given while handcuffed can never be voluntary under any circumstances[,] . . .[b]ecause of the inherently coercive nature of handcuffing, the fact that one is under such restraint at the time consent is given will make the State's burden to show voluntariness particularly difficult." Id. at 1087. The State failed to produce evidence that satisfies this heightened burden. Ms. Ballenger's cooperation regarding the crack pipe and the pills in her pocket at the time of the second pat-down constituted a submission to authority, not a freely and voluntarily given consent. Consequently, the State's evidence fell short of proving that the consent was not coerced, and the trial court erred in denying Ms. Ballenger's motion to suppress.

Fourth District On Rebuttable Presumption Of Rear-Driver Negligence

In Cevallos v. Rideout (4D08-3042), the Fourth District considered whether the rebuttable presumption of rear-driver negligence" applies "to bar a claim by a rear-driver plaintiff because a lead-driver defendant could be comparatively negligent."  The court stated:

“In Florida, there is a rebuttable presumption that the negligence of the rear driver in a rear-end collision was the sole proximate cause of the accident.”...A rear-driver defendant can overcome the presumption by establishing that the lead-driver plaintiff stopped abruptly a n d arbitrarily. Once the rear-driver defendant overcomes the presumption, the burden of proof on the proximate cause of the collision reverts back to the plaintiff, who can no longer rely on the presumption to establish the sole proximate cause of the accident...

Where the plaintiff is the rear driver, however, the rear-driver plaintiff,  like the rear-driver defendant, must prove that the lead-driver stopped abruptly and arbitrarily to rebut the presumption that the plaintiff’s own negligence was the sole proximate cause of the accident. Phrased another way, the evidence must establish that the rear-driver plaintiff cannot reasonably have been expected to anticipate the lead driver’s sudden stop.

***

The distinction between a presumption of comparative negligence and a presumption of the sole cause of the accident is reasonably related to the purpose of the presumption. Not only does the “sole cause of the accident” presumption relieve the lead-driver plaintiff of the difficult task of adducing “proof of all four elements of negligence,” it serves the additional public policy of ensuring that all drivers “push ahead of themselves an imaginary clear stopping distance or assured stopping space or adequate zone within which the driven vehicle can come to a stop.”

***

The plaintiff has the burden to prove duty, breach of the standard of care, proximate cause, and damages. In this case, the plaintiff simply could not rebut the presumption that her own negligence was the sole legal cause of the collision. Accordingly, the trial court correctly directed a verdict for the defendant. 

Fourth District Affirms Imposition Of Injunction, Reverses For More Specificity

In 4Uortho, LLC v. Practice Partners, Inc. (4D09-695), held that "We find no error with regard to the trial court’s decision to enter the temporary injunction, but reverse and remand as a portion of the order is vague and requires clarification."

As to the facts relating to the injunction, the court stated:

In early May of 2008, Farwell and Williams both resigned from their positions at Practice Partners, only to be hired several days later by 4UOrtho. Two months later, Elaine Morgan, a non-party to this lawsuit, also resigned from Practice Partners and accepted a position with 4UOrtho. Consequently, on August 7, 2008, Practice Partners filed its complaint, including claims for injunctive relief. In response, then counsel for 4UOrtho provided a written termination of the confidentiality agreement to Practice Partners on August 27, 2008. Practice Partners sought a temporary injunction, and three evidentiary hearings took place, after which, the trial court entered an order temporarily enjoining 4UOrtho from: employing Farwell, Williams, Morgan or any other current or past employee of Practice Partners until August 27, 2009; disclosing any confidential information until August 27, 2014; soliciting any practices which are current or prospective clients of Practice Partners and its affiliates; and offering employment or otherwise soliciting employment to any past Practice Partners employee under a non-compete agreement or any current Practice Partners employee until August 27, 2009.

With regard to the law, the court stated:

To establish that an agreement itself is lawful and enforceable, a party must “‘plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.’” Once the proponent of the injunction has established that the restraint is reasonably necessary to protect a legitimate business interest, the burden shifts to the opposing party to establish that the agreement is overbroad or otherwise not reasonably necessary. Id. A trial court’s ruling on a motion for a temporary injunction shall not be overturned absent a clear abuse of discretion...

Nonetheless, “one against whom [an injunction] is directed should not be left in doubt about what he is to do.” On appeal, 4UOrtho contends that the portion of the injunction preventing it “from soliciting a n y practices which are current or prospective clients of Practice Partners and the PPI affiliates,” is vague or overbroad. We agree and first direct the trial court to amend this portion of the injunction by defining prospective clients....Secondly, we direct the trial court to apply a time restriction to this portion of the order as well.

Summary Judgment Against State Farm Reversed By Second District Relating to Policy Interpretation

In State Farm Mutual Automobile Ins. Co. v. Fischer (2D08-589), the Second District reversed a summary judgment and final declaratory judgment entered by the trial court in favor of the plaintiff because the trial court adopted a definition of the word "relative" contrary to the plain language of the policy. 

The Facts

On March 19, 2006, Mr. Fischer was a passenger in a car being driven by his friend. They were involved in an automobile accident, resulting in injuries to Mr. Fischer. Mr. Fischer's parents owned the car and insured it with State Farm. The insurance policy included $10,000 in personal injury protection ("PIP") coverage and $50,000 in medical expense coverage. As a result of Mr. Fischer's injuries, State Farm paid the $10,000 in PIP coverage to Mr. Fischer's health care providers, but it denied Mr. Fischer's demand for payment of medical expenses in excess of $10,000.

***

The deposition testimony established that at the time of the accident, Mr. Fischer lived in a mobile home some three to four miles away from his parents' home.  He purchased the mobile home in 1998. The mortgage for the mobile home and the lot lease were in his name, as were the electric and water bills. Mr. Fischer received mail at his home, including the mortgage, electric, and water bills. However, he received some mail at his parents' home address.  At various times during the eight years that he lived in his mobile home, he rented a room in the mobile home to others.  Mr. Fischer has a learning disability, and he worked sporadically in the construction industry. He had financial difficulties, and his parents paid many of his debts. His mother testified that they paid 95% of his bills, and his father stated that Mr. Fischer paid part of his bills some of the time.

 The Policy

The insurance policy provides that it will pay medical expenses for bodily injury sustained by the first person named in the declarations, his or her spouse, and their relatives. Concerning medical expense coverage, the policy defines "relative" as "a relative of any degree by blood or by marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere."

(Emphasis added by the Court.)

The Trial Court

After a hearing on Mr. Fischer's motion for summary judgment, the trial court concluded, without explanation, that the applicable definition of "relative" in the insurance policy was ambiguous and that "the undisputed facts of this case require an interpretation in favor of coverage under the medical payment provisions." On that basis, the trial court granted summary judgment and then entered a final judgment in Mr. Fischer's favor.

The Second District's Decision

"If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and [] another limiting coverage, the insurance policy is considered ambiguous. Ambiguous policy provisions are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy." Id. (citations omitted). But, "the rule of liberal construction in favor of the insured applies only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction," and the fact that a policy fails to define an operative term does not, by itself, create an ambiguity. Gen. Star, 874 So. 2d at 30.  "When the insurer has not defined a term, the common definition of the term should prevail." Above All Roofing, 924 So. 2d at 847.

We cannot agree with the trial court's conclusion that the definition of "relative" contained in the policy is ambiguous. The policy language, including the definition of "relative," is readily understood as providing medical expense coverage to a person related by blood or marriage to the named insured who usually makes his or her home with the named insured. Coverage would not be precluded if the person is temporarily living elsewhere. Although certain phrases within the disputed policy provision are not specifically defined, those phrases are readily understood within the context of the full provision. Further, the definition as a whole is not ambiguous or fairly susceptible to more than one meaning. Accordingly, the trial court's determination that an ambiguity existed cannot be upheld.

***

In construing the terms "household" or "residency" under an insurance policy several courts, including this one, have observed there are three material aspects, including: "(1) close ties of kinship, (2) fixed dwelling unit, and (3) enjoyment of all the living facilities."...A number of cases have held that the concept of household does not require an individual to live at the same physical address as the insured relative...Finally, this court has recognized that "[a] determination of residency involves consideration of both fact and intention."

Here, the evidence established that Mr. Fischer had close ties of kinship with his parents and was financially supported by them to a significant degree.  However, he was not physically living with them at the time of the accident and was not living in his mobile home on merely a temporary basis. Instead, he maintained his residence separate from his parents and had been living at that residence for years, and he did not establish that he had full enjoyment of his parents' home or that he ever intended to live there again.

FDA Preemption Claim Rejected By Fourth District - Defensive Preemption Not Complete Preemption

In Cordis Corporation v. O’Shea (4D09-1597), the Fourth District denied the petitioner's writ of prohibition without prejudice for the petitioner's to raise the challenge on final review.  The court stated:

Part of petitioners’ defense is that federal law preempts state causes of action. The Cypher stent is considered a Class III medical device regulated by the Food and Drug Administration (FDA)...The FDA may deny the application, request additional information from the manufacturer, or grant approval. The manufacturer must comply with all design, manufacturing and labeling specifications set forth in a PMA approval order. 21 C.F.R. § 814.80. Petitioners advise that the FDA continues its oversight of the safety and effectiveness of PMA-approved devices after approval.

 ***

Petitioners’ argument is that the FDA’s extensive oversight of the Cypher brand stent’s safety and effectiveness leads to federal preemption of a n y state claim that challenges the FDA’s determination that the stent is safe. 

In a thoughtful series of orders, the circuit court dismissed some claims, allowed others to proceed, and considered the application of Riegel v. Medtronic, Inc., 552 U.S. , 128 S. Ct. 999 (2008), where the Supreme Court wrote:

State requirements are pre-empted under the MDA only to the extent that they are “different from, or in addition to” the requirements imposed by federal law. Section 360k(a)(1).  Thus, Section 360K does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case “parallel,” rather than add to, federal requirements.

Id. at 1011 (citations omitted).

The court then rejected the argument that American Maritime Officers Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008) controlled the preemption analysis.  The American Maritime Officers Union decision was previously discussed here.  Specifically, the court stated:

We reject petitioners’ assertion that this case is controlled by American Maritime Officers Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008). In American Maritime, we held that a petition for prohibition would lie where a complaint against a benefits plan alleging whistleblower claims was completely preempted by federal ERISA law.  However, that holding was based up on ERISA’s grant of exclusive  jurisdiction to federal district courts for violations under its laws. See 29 U.S.C. § 1132(e). No similar statute grants exclusive jurisdiction over the subject matter of this case.

Finally, the court agreed that this was defensive preemption and not complete preemption (as was found in American Maritime Officers Union).  "Further, the issues presented are more properly characterized as a “choice of law” issue rather than 'choice of forum' preemption, which would provide exclusive jurisdiction in the federal courts...We agree with the analysis of Gonzales v. Surgidev Corp., 899 P. 2d 576, 582 (N.M. 1995):

In considering whether federal preemption affects subject matter jurisdiction, the issue is not whether Congress intended to replace state law with a federal regulatory scheme but 'whether jurisdiction provided by state law is itself pre-empted by federal law vesting exclusive jurisdiction over that controversy in another body.'

Eleventh Circuit Dismisses ERISA Appeal For Lack Of Standing Under § 1132

In Dunn v. Harris Corp. (08-13847), the Eleventh Circuit affirmed the district court's dismissal of the plaintiff's ERISA claim.

“Section 1132 is essentially a standing provision [that] sets forth those parties who may bring civil actions under ERISA and specifies the types of actions each of those parties may pursue.” Gulf Life Ins. Co. v. Arnold, 809 F.2d 1520, 1524 (11th Cir. 1987). The only parties authorized to bring a lawsuit under § 1132 are participants, beneficiaries, fiduciaries, or the Secretary of Labor. ERISA defines a beneficiary as “a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002(8). “Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.” Nat’l Org. For Women, Inc. v. Scheidler, 114 S. Ct. 798, 802 (1994).

 

The only basis for Dunn to have standing to sue Harris and Fidelity in this case is if she is deemed a beneficiary. Dr. Cox has already been determined to be the proper beneficiary of Buddy’s 401(k) plan, and that determination has been affirmed by this Court. In light of that judgment, Dunn cannot become entitled to the 401(k) plan benefits, so she is not a beneficiary or potential beneficiary who has standing to bring a claim under § 1132. See Arnold, 809 F.2d at 1524. Dunn does not have standing, so we dismiss this appeal.

First District Posts Documents Filed In Pending NCAA v. AP Records Dispute

The First District posted the filings in the "high profile" case of National Collegiate Athletic Association v. The Associated Press; Cape etc., et al. (1D09-4385).  Included is the court's order staying the trial court's order pending resolution of the appeal.

Disclaimer: GrayRobinson is involved with this case.

Evidence Obtained From Warrantless Canine Search Improperly Suppressed

In United States v. Marrocco, --- F.3d ----, No. 07-3101, 2009 WL 2581339 (7th Cir. Aug. 24, 2009), the Seventh Circuit reversed the district court's decision and held "that the district court improperly suppressed the evidence of the contents of the briefcase and the results of the dog-sniff test."  Chief Judge Easterbrook wrote a concurring opinion which began "I join the court's opinion without reservation but add a few words about an issue that, as the court notes (slip op. 10 n. 5), the litigants have overlooked." 

Judge Ripple wrote the court's opinion and summarized the facts as follows: