3d DCA Watch - Lump of Coal Edition

Tough times all around, and things do look bleak, but it's Christmas after all, so let's see what our coffee-swilling resplendantly robed ones to the South have stuffed into our legal stockings this Christmas Eve in a very special holiday edition of our patented 3d DCA Watch:

Eww. For the love of the common man let's hold our nose and get right to it:

Lifemark Hosp. v. Afonso:

I know this is hard to believe, but the Florida Legislature isn't all that good at drafting laws, even when they are drafted at the same time and specifically in response to a particular Florida Supreme Court opinion.

Here's Judge Ramirez's very clear summary of the appellate issue:

This is an appeal involving an arbitration award which presents a question of statutory construction, namely, whether section 766.207(7), Florida Statutes (2003), limits awardable economic damages in arbitrations to those damages available under the Wrongful Death Act. In other words, the issue presented is whether the 2003 amendments to the Medical Malpractice Act limit economic damages in arbitrations involving a wrongful death to those afforded by the Wrongful Death Act.

Short answer: HAHAHAHA. It's a fairly detailed analysis, but the bottom line is you can forget about recovering loss of earning capacity in a wrongful death med mal arbitration. Happy Holidays!

Andersen Windows v. Hochberg:

The bearded and very talented one, Mike Ehrenstein, represented the Hochbergs in this one, who had the misfortune of having some expensive yet crappy windows and doors installed that leaked. They had to sue and all, but at mediation reached a settlement, which provided as follows:

The two-page agreement, which was hand-written by the Hochbergs’ attorney at the end of mediation, was signed by the parties, approved by the circuit court, and provided that Andersen would repair, replace, and/or adjust the home’s doors and windows. Additionally the parties’ agreement provided:

3. Andersen will retain a water testing consultants [sic] acceptable to plaintiffs (“GCI”) and will test (“water isolation test”) all of the doors after the replacement and repairs set forth in 1 and 2 above to verify that all exterior doors are not leaking at Andersen’s sole cost and expense.
....

9 (a). All water testing shall be a representative sample of product as determined by Bill Bonner [GCI]. The parties may utilize any other qualified representative of GCI acceptable to both parties.
(Emphasis added).

So even with the repairs, a representative sample of the "fixed" doors and windows still leaked -- I love South Florida! So the Hochbergs asked that everything that was installed be tested to make sure there are no leaks.

Nope, said the 3d.

However, we'll be thinking of you, Mr. and Mrs. Hochberg, when the next hurricane hits! Happy New Year!

Plaut v. NCL:

When cruise lines get affidavits from neighbors, and show them for the first time to you on the witness stand, it means you should not blab to your neighbors so much and also that cruise lines are pretty darn sneaky.

Other than that, Merry Christmas!

Island Sea-Faris v. Haughey:

When you book an excursion from your home in South Florida, through Royal Caribbean, that doesn't mean the excursion operator has anything to do with you or South Florida on the following facts:

Royal Caribbean sold tickets for Island Sea-Faris’ shore excursions, and Royal Caribbean sold tickets via the telephone and the internet to persons in Florida; Royal Caribbean processed the telephone and internet purchases at Royal Caribbean’s substations located in Florida; passengers aboard a Royal Caribbean cruise ship were able to purchase tickets for Island Sea-Faris’ shore excursions while in Florida territorial waters; Royal Caribbean is the only party that can collect the money for the shore excursions, and Royal Caribbean pays Island Sea-Faris for the shore excursions; and Island Sea-Faris provides the actual shore excursion, and pursuant to this business venture, Royal Caribbean receives forty three cents on every dollar and Island Sea-Faris receives the remainder.

Haughey also introduced evidence that Island Sea-Faris worked with other major cruise lines, including Carnival, in Florida, to provide their shore excursions; and that Island Sea-Faris contracted to purchase insurance covering persons, property, or risk in Florida, including Royal Caribbean and Carnival as the named insured parties. Additionally, Haughey introduced evidence to show the existence of a 2003 contract between Royal Caribbean and Island Sea-Faris that required insurance. Haughey also introduced the 2005 Tour Operator Agreement entered into between Island Sea-Faris and Royal Caribbean in October 2005 that contained clauses relative to insurance and indemnification.

See? There was no "direct" connection between the operator and South Florida after all.

Have a great holiday!

The Scotts Co. v. Loma Linda:

Shorter Judge Salter -- we can't help it if foreign jurisdictions go out of their way to make it impossible for plaintiffs to recover for their losses, we still think under Kinney that hostile forum is a perfectly suitable alternative venue:

Expressed another way, if our courts determine that a foreign forum is available and adequate, it is the obligation of the plaintiff to assent to jurisdiction there and to support that court’s exercise of jurisdiction over the matter and the parties. Further, that plaintiff may not assume that a foreign country’s preemption or blocking laws will be recognized here.8 If the foreign country chooses to turn away its own citizen’s lawsuit for damages suffered in that very country, and if the other Kinney factors warrant dismissal here, it is difficult to understand why Florida’s courts should devote resources to the matter.

This is a very interesting issue, and I understand Judge Salter's concerns in the particulars of the case at hand. Yet I think he goes too far when he seeks to extend that concern more generally. For example, consider this sentence:

But the lure of U.S. tort laws, pretrial discovery, class actions, punitive damages, jury verdicts, and contingent legal fees assured that a kind of international legal chess game4 would follow the early forum non conveniens rulings. In an effort to enhance their own citizens’ chances of avoiding a forum non conveniens dismissal in the U.S., a number of countries enacted laws or rendered judicial decisions intended to preclude their own courts from hearing the refiled cases. The plain intention of these measures was to assure that the foreign country would not be an “available adequate forum” for purposes of the U.S. court’s forum non conveniens analysis, with the hoped-for result that a plaintiff from that country would be able to keep its claims in the U.S. court.

"Feliz Navidad!", he added.

I think there is some merit to Judge Salter's concern in the "refiled" context at issue in this particular case.

But Judge Salter's construction of the issue makes it seem only one side is playing the "chess game" referred to in the bolded language. Don't American-based defendants also engage in machinations to have claims dismissed from our courts, knowing as a practical matter the case is "dead" and there is little chance they will ever have to be held accountable in foreign jurisdictions which lack due process or a fair legal system free from the corrupting effects of money and power?

Also, how can you rule against Susan Lerner? That's just wrong.

Uh-oh, I'm having another one of those Kinney fever-dreams. Man I have got to lay off those gin-nogs.

Well, I guess all of this is good news for somebody, somewhere, so I say:

Happy Holidays, Mickey Arison!!

The rest of us will have to do like that wonderfully melancholy WWII holiday classic, "Have Yourself A Merry Little Christmas":

When presented with the original draft, Garland, her co-star Tom Drake and director Vincente Minnelli criticized the song as depressing, with lines such as "Have yourself a merry little Christmas / It may be your last / Next year we may all be living in the past" and "Faithful friends who were dear to us / Will be near to us no more".^[3] Though he initially resisted, songwriter Hugh Martin made several changes to make the song more upbeat. For example, the lines "It may be your last / Next year we may all be living in the past" became "Let your heart be light / Next year all our troubles will be out of sight."

"Next year all our troubles will be out of sight." I like the sound of that.

Thanks for reading and commenting.

Happy Hannukah and Merry Christmas everybody!