Florida Arbitration Law: Arbitration & Mediation

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Arbitration & Mediation

Florida Arbitration Law

Discusses trends and developments in the enforcement of arbitration and exculpatory clauses. Focuses on Florida law but covers important decisions and current events in other states.
By Christopher B. Hopkins, Esq.

Post Frequency: 1.7/day

Last Entry: March 31, 2011 at 15:49:53

Facing "Bad Faith" Demand Letter, Insurance Company Can Require a Release

Posted on February 11, 2009
Many a lawyer has sought to transform a standard car accident case into a bad faith claim against the would-be defendant's insurance company. The plaintiff makes a demand for policy limits, the insurance company accepts, and then presents a general release...

Nursing Home's Agreement Causes Further Confusion in Florida

Posted on February 08, 2009
It is no mystery that businesses typically prefer arbitration – hence those clauses in so many standard-form contracts. On the other hand, consumer groups and plaintiff lawyers often want to avoid arbitration. More confusing, there are studies and journal articles which tout the fairness of arbitration while others denounce them as star chambers...

First DCA Upholds Prenuptual Agreement Which Holds "Property... forever free of claim by the other"

Posted on February 02, 2009
Florida law permits prenuptual agreements, including those which prohibit one spouse from ever taking possession of the other spouse's pre-marital property -- even if a spouse dies, rather than in the case of a divorce. There is probably more to this case than meets the eye as it appears that a minor child may be squaring off in a battle over property against his mother in Joshua Eugene Taylor as only child of Louis Eugene Taylor, deceased, versus Mary Ann Taylor...

F.S. 57.105's 21-Day "Safe Habor" Provision Applies for Motions, Not Cases, Filed after July 1, 2002

Posted on January 24, 2009
Another day, another Florida state court opinion shooting down either a 57.105 Motion for Sanctions or invalidating a Proposal for Settlement. For practitioners, defending AGAINST these motions has always been a serious matter, given the consequences...

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Good Time to Arbitrate in Palm Beach County...?

Posted on January 20, 2009
Two recent releases from the 15th Judicial Circuit reveal the effects of a vortex of judicial appointments, judicial problems, and budgetary cuts which has lead to drifting judicial assignments as well as the temporary closure of entire trial divisions...

Third DCA Rejects Proposal for Settlement Sanction When Co-Defendant Pays

Posted on January 14, 2009
A split Panel on the Third District (Shepherd, Suarez and Schwartz) held that a defendant cannot collect on a valid Proposal for Settlement when the Plaintiff received payment from the co-defendant which released all parties and dismissed the case. Given the unusual ruling and the apparent strong positions of the parties, Central Motor Company d/b/a Central Hyundai et al v...

Shareholder Agreement Disputes Must Be Arbitrated Under Contract

Posted on January 07, 2009
We are a full four business days into the new year and it is the Third DCA which wins the race to issue the first arbitration decision of 2009. Unfortunately, this case is fact intensive but light on law so it may not hold much precedent. In Noah Breakstone v...

Releases Signed By Parents For Children Not Valid For Commercial Activities

Posted on January 06, 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...

Gov Crist Appoints Palm Beach Judge to Florida Supreme Court

Posted on January 02, 2009
At least that's what the Orlando Sentinel and Palm Beach Post are reporting... Congrats to Palm Beach Circuit Court Judge LaBarga. He had been appointed to the 4th DCA in December and then was appointed to the FSC in January. We note the Sentinel ran the story (and Tweeted it) 45 minutes before the PB Post picked it up off the wire...

Flesh Eating Bacteria Attacks Florida's Medical Neglignce Arbitration Statute

Posted on December 27, 2008
In a duel involving amicus briefs from both the plaintiff bar as well as the state hospital association (the defense bar?), the Third District handed down a Christmas Eve decision which likely lead to some thoughtful post-egg nog conversations in households of Florida lawyers...

Arbitration Clauses in Home Sales Contract Do Not Seem to Include Personal Injury Claims

Posted on December 17, 2008
The Florida Supreme Court's 1999 decision in Seifert v. U.S. Home Corp. has become the standard for the elements to enforcing arbitration. Notably, the Seiferts were suing for a personal injury and the construction company sought arbitration, which was ultimately denied under the principal that the home construction contract's arbitration clause did not contemplate a subsequent personal injury which did not have a sufficient nexus to the contract for the building of the home...

You Can Rescind the Ferrari, But Not the Arbitration Clause

Posted on December 09, 2008
In the case of Michael Depaoli v. Exotic Motorcars and Jewelry, Inc., the Southern District of Florida court (Judge Kenneth A. Marra) handled a Ferrari deal gone bad. His ruling concluded that a 2000 Fourth DCA opinion was no longer good law and that a claim of rescission, which would void the contract, is for the arbitrator when there is a valid arbitration clause...

Plastic Surgery Arbitration - Motion to Disinter Body Appealed

Posted on December 05, 2008
Most civil practitioners make it through their entire careers without filing a Motion to Disinter a Body (don't bother flipping through the Rules of Civil Procedure, it's not there). In a well publicized plastic surgery death case, the First District interesting took an appeal from binding arbitration under the medical negligence statute to ascertain whether it was necessary discovery...

Last Request: Florida Trend Magazine Legal Elite 2009 Vote

Posted on December 05, 2008
If you are a Florida lawyer, please follow the link below to submit a ballot for Florida Trend Magazine's 2009 Legal Elite list. Deadline is December 10. Follow this link and enter "Christopher B. Hopkins" and "Butzel Long, P.C." for law firm. I appreciate your support!

4th DCA Clarifies Referral to Special Master/General Magistrate

Posted on December 04, 2008
Florida practitioners are likely seeing more circuit court judges referring matters to special masters/general magistrates. This judicial practice appears to be arising out of the court's limited resources. Consider it a mild form of alternative dispute resolution...

Palm Beach Bar Association CLE on "Hidden Gems" of Mediation and Arbitration

Posted on December 02, 2008
Need 3.0 hours of ethics credits? Interested to learn winning techniques from some of the best mediators in South Florida? The Palm Beach Bar Association is hosting a February 9, 2009 CLE, "Mediation and Arbitration in 2009: Finding the Hidden Gems...

Joint Proposal for Settlement Fails For Lack of Allocation / Attribution Between Recipients

Posted on November 24, 2008
Getting the format of a Proposal for Settlement/Offer of Judgment correct in Florida state courts is hard enough. A Proposal can, but likely shouldn't, include an attached release. It can resolve all claims, or not. Drafting a Proposal to more than one recipient ("joint" proposal for settlement) is even more difficult...

Contractor Lien Law (F.S. 713.21) Does Not Allow M-Compel Arbitration As Response to Discharge of Lien

Posted on November 20, 2008
In a statutory-driven area of construction law, the Fourth District (Klein, Farmer, and Taylor) once again bristle at a party's attempt to seek arbitration. Ironically, in their haste to torpedo the enforcement of arbitration in 2 pages or less, it appears they missed citing to pretty decent precedent from the Third DCA...

A "Cue" From Third DCA: Mediation Settlements Must Be Signed (Or "Make Sure You Read Rule 1.730")

Posted on November 17, 2008
We've mentioned before that verbal settlement agreements reached in the hallway are unenforceable. What about unsigned mediation settlement agreements? In a concise opinion, the 3rd DCA (Shepherd, Rothenberg, and Lagoa) advised the parties in Mastec, Inc...

AT&T Wireless / iPhone Arbitration, Class Action Waiver Upheld in Middle District of Florida

Posted on November 10, 2008
We previously commented on the AT&T Mobility Wireless Service Agreement which comes with most AT&T Wireless (formerly Cingular) plans, including the iPhone. Since its inception in mid-2007, both the original and 3G iPhone have always required AT & T service as well as arbitration and class action waivers, although the contract language has changed over time...

Third Party Beneficiaries Not Entitled to Attorney's Fees Provided in Contract

Posted on November 06, 2008
Third party beneficiaries to a contract are not entitled to recover attorney's fees under that same contract, unless the fee provision is clear, specific, and unambiguous that it includes more than just the signing parties. In Civix Sunrise, GC, LLC v...

What Can Companies Do if Florida Courts Invalidate Parental Waivers for Children's Activities?

Posted on November 03, 2008
Over the weekend, general counsel for a large Florida corporation asked me if her company should even bother to have parents sign waivers for their children who tour the company grounds or even ride bikes on the property. Lawyers around the nation might go wide-eye at the heretical suggestion of foregoing waivers for corporate events or activities, especially those involving children...

Florida Supreme Court Amends Rules on Mediator Sanctions & Discipline

Posted on October 27, 2008
The Florida Supreme Court last week amended various criminal, family, and mediator rules. Relative to mediators, the Court revised the appellate process relating to any finding of a violation of the mediator rules. According to In Re: Amendments to Florida Rules for Certified and Court-Appointed Mediators, the Chief Justice or designee has jurisdiction to review any finding of a violation (or imposition of sanctions)...

Florida Trend Legal Elite - vote

Posted on October 22, 2008
If you are a Florida lawyer, please follow the link below to submit a ballot for Florida Trend Magazine's 2009 Legal Elite list. Follow this link and enter "Christopher B. Hopkins" and "Butzel Long, P.C." for law firm. I appreciate your support!

Lawyers Have No Implied Authority to Settle ("Emergency" Exception Has Never Been Applied)

Posted on October 20, 2008
Can an attorney settle a case based upon implied or apparent authority? The general rule is "no" and the exception to that rule exists as a matter of law but has never been exercised. So "no" means no. In Calvin A. Johnson v. Velma Virginia Skarvan, the plaintiff was represented by counsel and was scheduled to attend an independent medical examination (IME) set by the defendant...

Waiver of Arbitration is Not Cured by Plaintiff Amending or Transferring Case

Posted on October 15, 2008
When I print out a new case, I often flip through to see when the case law begins to get cited. No, I'm not rushing to the end like someone who reads the last page of a book first. It's more of a law school habit. Court opinions set out the facts first and then the rule of law...

Can a Party Execute on a Debt and "Buy" an Arbitration Claim against it as a "Chose in Action"?

Posted on October 13, 2008
Sometimes cases play out like chess games, with each side having their own style and strategy. The game itself turns into a tricks and set-ups designed to distract the opponent in order to expose the queen. Whether you like the outcome or not, there was some insistent and clever lawyering in the case of David Donan v...

Tennessee Court Denies Arbitration for Nursing Home Resident (signed by 2 daughters)

Posted on October 08, 2008
The case of Nina McKey, Administratrix of Estate of Ruby Irene Brewer v. National Healthcare Corp et al., out of Tennessee, gives us yet another example of a court declining to enforce arbitration in the nursing home setting when signed by a family member who has not been designated or appointed to sign on behalf of the resident...

2008 - 2009 U.S. Supreme Court Term

Posted on October 06, 2008
Happy First Monday in October. For those who enjoy watching the U.S. Supreme Court terms, they are open for business as of today. You can keep track of the developments at the SCOTUS blog and other sites. For alternative viewpoints on the upcoming term, take a look at the articles in the LA Times or the Christian Science Monitor...

ABA Articles Find Rule 26 Disclosures and E-Discovery a "Morass"

Posted on October 05, 2008
Despite the fact that I am a member of the three federal court districts in Florida, I rarely suggest to a client to resort to federal court. Why? The expense of discovery and the needless procedures. It appears I'm not alone. According to a recent survey of nearly 4,000 lawyers, the process of filing in federal court itself has become a weapon: pleading requirements, immediate discovery demands, new e-discovery, and a "total lack of control over discovery...

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