Archive for the ‘GPI’ Category

Florida Cruise Line Passengers & Forum Selection Clause in the Ticket

Monday, June 7th, 2010

The Third District has presented to the Florida Supreme Court a question of great public importance as it relates to the enforceability of forum selection clauses in cruise ship tickets. While the dissenting judge suggests that this is just a “garden variety personal injury case with a contractual twist,” the panel (based in Miami) likely recognized the significance of the cruise line industry in Miami-Dade and elsewhere in the state.

In Walter Weisenberg v. Costa Crociere (Cope, Shepherd and Suarez), the forum selection clause read:

For cruises which depart from, return to, or make any
port call at a United States port, Passenger further agrees
that any suit against CARRIER shall be filed exclusively
in the United States District Court for the Southern
District of Florida located in Broward County, Florida,
and that any such suit shall be based exclusively upon the
admiralty jurisdiction of the United States District Court.

In short, it must be in federal court in Ft. Lauderdale and federal jurisdiction is conferred by admiralty law. The Plaintiff claimed that this was not sufficient notice of the need to file in federal court and that there would not be a jury. A prior case from last year, Leslie v. Carnival Cruise, involved a slightly different clause which did not require admiralty jurisdiction.

Question of GPI presented is:

IS A FORUM SELECTION CLAUSE ENFORCEABLE
IN CIRCUMSTANCES WHERE ITS EFFECT IS
THAT PASSENGERS WAIVE THE RIGHT TO A
JURY TRIAL BUT THE CLAUSE DOES NOT
EXPRESSLY SO STATE?

New Florida Law “Repeals” (in part) Court Decision About Parents Signing Child Waivers

Friday, April 23rd, 2010

Commercial activity providers will soon be able to go back to having parents sign liability waivers for their children, once the Governor signs a new law passed by the Florida Legislature this week.  While the law facially curtails lawsuits, it has nonetheless been heralded as a “win” for trial plaintiff lawyers (don’t be fooled: it is good for defense lawyers to, since someone has to defend the cases).

The history of this issue started with a surprise 2008 decision from the Florida Supreme Court when it said in the Fields case that parents/guardians did not have the inherent authority to waive liability on behalf of children participating in commercial activity (e.g., motorcross, rides, boating, sports, safaris, etc.).  In 2009, spurred by Orlando theme parks, dive boat operators, motorsports venues and others, the Florida legislature tried but failed to pass a bill essentially “reversing” the court’s opinion.  See here for a brief overview.

The issue was revived again this year and it appears, from the coverage, that the bill succeeded due to a combined weakened perspective of the plaintiff bar and some concessions.

Senate Bill 2440 is here.  A solid history of the issues can be found in the staff analysis.

Highlights are:

* law amends Florida Statute 744.301 to allow parents/guardians to sign waivers releasing commercial activity providers from liability for injuries to children due to “inherent risks” (only)

* law creates a rebuttal presumption of no liability — it is not a bar to lawsuits nor it is grounds for a quick summary judgment

* many businesses have a hard time getting and maintaining the proper paperwork; the law requires certain releases with specific clauses or else it is invalid

* an attempt to make an overly broad release may invalidate the whole thing

* still no definition of a “commercial” vs. “noncommercial activity provider”

* law does allow “noncommercial activity providers” (whoever they are) total immunity under a valid pre-injury waiver

Florida New Slip and Fall Law July 1, 2010

Monday, April 19th, 2010

Governor Crist signed HB 689 into law, creating a mini tort reform change in the ongoing battle as to how slip and fall cases are handled in Florida.  A Google search reveals over 1,400 news stories on the issue but many get the story wrong and most fail to give the specifics.  Almost all of the coverage agrees that this favors business owners.  Let’s see if we can do better (and be concise):

* The current law, F.S. 768.0710, sets out the “reasonable care” standard and the claimant has the burden to show a duty and breach thereof.  Proof of actual or constructive notice of a transitory object is not required.

* The new law, effective July 1, 2010, repeals section 768.0710 and creates a brand new Florida Statute 768.0755, which includes a pro-business addition to the statute requiring a plaintiff to prove actual or constructive notice of a transitory substance which would then establish a breach of duty.

* My read, and I stand to be corrected, is that the new law applies only to actions which accrue (occur) on or after July 1.

* For those interested in the history of the bill and its twin, CS / SB 1224, see here.

* The twists and turns of the slip-and-fall battle date back to the 2001 Florida Supreme Court case of Owens v. Publix, which lead to the Legislature turnaround in 2002.  A solid recount of the flip-flopping is here.

I recall that there are alternate tort claims for slip and falls relating to warning and maintaining — any guesses as to whether this will apply to both methods of suing for a slip and fall?

We’re open for comments below.

Is There Really a “Free” Credit Report?

Tuesday, March 23rd, 2010

Yes, believe it or not.

You’ve probably seen the commercials for LifeLock, the company where the president was publishing his own social security number to show how safe their $100/year identity theft program could be.  Sounded great until they had to settle with the FTC for $12 million for alleged deceptive advertising.

Then there’s FreeCreditReport.com.  Great commercials on tv.  Ah, but there’s a fee to sign up and then you need to cancel to avoid paying $15.  If I’m handing over personal information to confirm there has not been any funny business with my credit, this sign-up-and-then-cancel routine is not the way I want to begin.

You can obtain a free “credit disclosure” (or credit report) once a year from the three major credit reporting companies (Equifax, Experian, and TransUnion) under the Fair Credit Reporting Act (FCRA) and the FACT Act.

So, yes, it is true, federal law allows you to obtain your credit report every year.  The FTC’s website explains the situation here and here.

So can you get your report… online… instantly?  Yes.  Go to AnnualCreditReport.com and start the process.  You can run all three credit reports at once or, if you are suspicious about monthly activity, you can run one at a time and stagger it out over the period of a year.  If you are concerned about using a website for this, you can mail or call it in — note, the FTC’s website references using this AnnualCreditReport.com, if that increases your confidence.

I pulled all three reports in about 5 minutes.  Anecdotally, it looks like Equifax is the most comprehensive.

Note: you have to pay to get your “credit score.”  That’s not free.

Overview of U.S. Supreme Court’s Gun Law Case

Wednesday, March 3rd, 2010

The current news cycle is replete with coverage of US Supreme Court oral argument in the handgun ban case, McDonald v. Chicago.  The appeal arises from a Seventh Circuit opinion from June 2009.

Gun enthusiasts and opponents will likely find the actual pleadings and legal arguments less than exciting since the debate circles around whether the Privileges and Immunities (P&I) Clause of the U.S. Constitution applies, wholesale or selectively, to the Bill of Rights (P&I is the “comity” clause which says states cannot discriminate against citizens of other states when it comes to civil rights).

The 7th Circuit declined to apply the P&I clause since prior SCOTUS cases dating back to the late 1800′s (!) indicate otherwise, although the reason in those cases has since been “undermined.”

There’s more in the 7th Circuit decision about constitutional debates, stare decisis vs. whether cases can be “bypassed as fossils,” and other academic legal wranglings which likely will not stir the interest that the public gun debate, uh, musters.

For those interested in the pleadings (including over 30 amici briefs from groups as varied as Jews for the Preservation of Firearms and the Safari Club), visit the ChicagoGunCase.com website.

If you are interested in scouring the 2008 D.C. gun case, District of Columbia v. Heller, for clues (it cites the 1800 cases in a footnote) or you are interested in seeing the procedural history of the Chicago case in the context of other post-Heller cases, Wikipedia has some fairly good coverage.

The prevailing media opinion is that the SCOTUS will apply the Second Amendment to the states and municipalities but may leave in place the right to regulate.  I’m guessing that the Court will save this opinion for the end of their term, since they often like to drop “big” decisions and then hightail it out of D.C. for the summer.

Holocaust Museum Shooter Blames Obama

Thursday, June 11th, 2009

Almost every news outlet has covered the Holocaust Museum shooting.

For a first hand source, here is the criminal complaint filed in federal court against the alleged Holocaust Museum shooter.  It’s a federal crime since the museum is federal land.  Reportedly, there is both video of the incident and the recovery of a diary or writings where the elderly man blamed both Jewish people and President Obama.

Amendment 7 Trumps Work Product In Tug-of-War Over Medical Incident Reports

Tuesday, May 12th, 2009

Before the November 2004 elections, there was a battle between plaintiff lawyers groups and physician groups — each side seeking to convince the voting public to tack on amendments to the state constitution which would sting the other side.  The plaintiff lawyers won and “Amendment 7″ (access to adverse medical incident reports) became Article X, section 25 of the Florida Constitution.

The plaintiff lawyers again struck gold with the 2008 Florida Supreme Court decision in Florida Hospital Waterman, Inc. v. Buster, which essentially upheld a broad interpretation of Amendment 7 to allow plaintiffs access to gobs of previously privileged documents in the health care field.

Prior to Buster, plaintiff and defense counsel were making a fortune developing keen arguments in trial and appellate courts across the state trying to etch some new area of discovery.  After Buster, things began to grow fairly quiet.

The only health care related group to win an Amendment 7 battle were nursing homes and ALFs, which were deemed not to be health care providers — consistent with a prior battle over pre-suit requirements when plaintiff lawyers were arguing that they did not have to comply with Medical Negligence Chapter 766 requirements in long term care cases.

On May 8, the Second District (Altenbernd, Casanueva, and Silberman) handed down a decision in Lakeland Regional Medical Center v. Neely which re-affirmed Buster and confirmed, at least in one intermediate appellate court, that the work product doctrine was trumped by Amendment 7 and Buster.

The Court reasoned it was “constrained” by Buster and posed a question to the Florida Supreme Court as a matter of great public importance.  Our guess: it is unlikely the Court will take it and, if they do, look for the “final word” confirming the viability and breadth of Amendment 7 OR… an unexpected change of course.

Liability Waivers: Trial Lawyers v. Theme Parks, Florida Supreme Court vs. Legislature

Wednesday, April 22nd, 2009

In December 2008, the Florida Supreme Court handed down a significant opinion which held that liability waivers which parents signed for their children to participate in commercial activities were NOT valid.  The Florida Legislature, encouraged by the Florida tourism industry, was quick to act with House Bill 363/Senate Bill 886 which would essentially “reverse” the Court’s interpretation and permit businesses to use child liability waivers.

The Orlando Sentinel recently ran an insightful April 17 piece on the issue, Dilemma: How to let kids take risks, be safe from negligence.  The article accurately set out the opposing camps, with businesses on one side and activists/plaintiff lawyers on the other.  

The article missed, however, the provocative April 15, 2009 Staff Analysis which challenged the Kirton v Fields opinion as “new law solely based on [the Court's] subjective assessment of ‘good’ pubic policy.”  It also advanced that the Court had acted “in violation of the separation of powers provision of the Florida Constitution.”

You can follow the progress of House Bill 363 here.

U.S. Supreme Court: Police Can Mistakenly Arrest Someone and Still Convict on Evidence Obtained

Thursday, February 26th, 2009

The United States Supreme Court affirmed an Eleventh Circuit Court opinion today finding that police negligence which lead to the arrest of a person without probable cause or a valid warrant was not grounds to exclude the discovered gun and drugs.  In short, a person with a prior record who was mistakenly arrested will face felony charges based upon what he was carrying when wrongly arrested.

The Fourth Amendment to the Constitution protects people from unreasonable searches and seizures.  The Constitution does not provide any protection against the use of the improper search/seizure.  A judicially-created “exclusionary” rule, however, does exist — favoring both criminals and tv crime show writers.

In this case, an astute investigator learned that a known criminal was coming to the police station and asked the clerk to check if there were any warrants out for the known criminal’s arrest.  None were found in the county but the clerked called the neighboring county, which reported there was a felony warrant.  The defendant was arrested on that information.  Within minutes, it was established that the other county had a clerical error and there was no warrant.  But the police had already found a gun (our known criminal was a felon) and meth.  Criminal defense counsel sought to suppress/exclude the evidence since it was improperly obtained.

The High Court played a bit of a cat and mouse game as to whether there was a 4th Amendment violation; nonetheless, since the parties had agreed there was a violation, the question was whether the exclusionary rule applied.  If you watch a lot of tv, you would think it was automatically excluded.

Yanking us back to reality, Chief Justice Roberts wrote in  Bennie Dean Herring v. United States that the exclusionary rule “has been our last resort, not our first impulse.”  It is not an individual right and, instead, only applies when it results in some appreciable detterence of constitutional violations by the police.  The Court used the “objectively reasonable” standard (a good faith/knew or should have known approach) in evaluating the conduct here — which, admittedly, does seem free of any intentional misdoing by the police.

The dissent complained that there was not a sufficient rule in place to determine where/when exclusion would apply.

I’m not a criminal lawyer but the facts of this particular case seem extreme in terms of showing this was “simple negligence” in otherwise good faith law enforcement.  That said, this was a 5-4 decision.  As such, while the wording of the Opinion is quite strong, one might guess that muddier facts in future cases may yield the opposite outcome.

Liability Waivers Signed by Parents for Children to Participate in Commercial Activity are NOT Enforceable

Thursday, February 26th, 2009

The Florida Supreme Court took up the question of the enforceability of (fairly common) “pre-injury” liability waivers/general releases which are signed by parents so their children can participate in commercial activities. Finding this an issue of “great public importance,” the Court held that these releases are NOT valid. If, however, the waiver is for the child to participate in non-commercial activities such as school or community events, such a waiver could be valid.

As the dissent points out, it is odd for the Florida Supreme Court to enunciate a public policy (of great public importance) despite no such prior reference in Florida general or statutory law. Moreover, quickly Florida lawyers will question (a) whether the parents can be called upon to indemnify the activity operator or (b) whether a case involves a commercial or school/community activity.

The case of Scott Corey Kirton et al. v. Jordan Fields et al.; Dean Dyess v. Jordan Fields; and H. Spencer Kirton v. Fields were consolidated appeals arising from an August 2007 Fourth District Court of Appeal decision.

Our prior post gives the backdrop of case law which lead to this Florida Supreme Court ruling, which should not have come as a shock in light of the hints dropped in the 2005 Global Travel v. Shea opinion.

The Court held that “a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in commercial activity.” In a quick footnote, the Court then qualified that this decision would only be dicta if (when!) the questions arise about the enforceability of parent-signed exculpatory agreements for children to participate in non-commercial activity.

That creaking noise you hear is the door being swung wide open for appeals arising from the enforcement of liability waivers in non-commercial cases as well as in instances where it is unclear whether an activity is commercial or non-commercial.

The Court admitted there is no statute on point. It did, however, find that this situation invoked the State’s parens patriae public policy basis to preclude the enforcement of such waivers. Signing a pre-injury waiver was deemed not to be so much a part of a fundamental right of raising children but more an “injustice” which “deprives the child of the right to legal relief” and could lead the child, family, and the State to “suffer.” Signing the waiver “impacts the minor’s estate and the property rights personal to the minor.”

A short-shifted discussion was then had about how commercial activities could afford insurance and/or pass the cost along to the consumer; hence the differential treatment.

Justice Wells concurred but noted that “until today, this Court has never held that such a pre-injury release knowingly executed by a parent is unenforceable.” He further pointed out, given the number of cases on point, that the Legislature certainly had the opportunity to outlaw such provisions — and didn’t. He concluded, “it is fundamentally unfair to now declare a new public policy and then apply it to the defendants in this case.”

While Florida parents will likely collectively sigh with relief, this new public policy which divides commercial and non-commercial activity into two poorly-defined camps may lead to confusion — if not mistaken decisions — involving signing releases in quasi-commercial (or questionably non-commercial) activities.

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