Radey Law » Florida Supreme Court

Florida capital briefs: Supreme court rules against hospital on documents

Kendria Ellis — Fri, 13 Jan 2012 13:52:32 +0000

The Florida Supreme Court today rejected arguments by a Pensacola hospital in a legal battle about turning over documents to an injured woman’s attorneys.

Florida Supreme Court keeps three amendments from ballot

Kendria Ellis — Wed, 01 Sep 2010 12:39:36 +0000

TALLAHASSEE — The November ballot just got less crowded.

The state Supreme Court on Tuesday affirmed lower court rulings to strike three ballot amendments proposed by the Legislature concerning redistricting, the new federal health care law and property taxes.

Justices get rental car liability case

Tue, 02 Mar 2010 14:18:28 +0000

By BILL KACZOR – Associated Press Writer

TALLAHASSEE — An accident victim’s lawyer Thursday urged the state Supreme Court to rule that rental car companies can be held liable for damages in an accident they did not cause in Florida, even though a new federal law is designed to shield the companies.

The legal concept of holding non-negligent owners responsible regardless who was behind the wheel is known as “vicarious liability.” It is prohibited for rental vehicles by the 2005 federal Graves Amendment except in states that have financial responsibility or insurance requirements for rental companies.

The law’s sponsor, Rep. Samuel Graves, R-Mo., predicted it would save consumers $100 million nationally.

At issue in the Supreme Court is whether a Florida law titled “Financial Responsibility” meets the federal exception criteria in what could be a precedent-setting case.

State law says if the person who leases or drives a rented vehicle is uninsured or has combined insurance limits of less than $500,000, the rental company “shall be liable for up to an additional $500,000 in economic damages.”

“It is implicit that there is a requirement to maintain insurance albeit it is not expressly stated,” Marjorie Gadarian Graham told the justices. She argued the Legislature intended it to be an insurance requirement and that it’s explicit enough to except Florida from the Graves Amendment.

David C. Boruke, a lawyer for Enterprise Leasing Co., disagreed.

“Nothing is required,” Boruke said. “It’s an option. It’s an opportunity to make a cost-benefit analysis, but it is not required insurance by any stretch of the imagination.”

A trial judge in Palm Beach County and the 4th District Court of Appeal, in a 6-4 opinion, agreed with Enterprise. Both lower courts rejected a vicarious liability claim by Rafael Vargas, who was injured when an Enterprise-owned vehicle rear-ended his car in February 2006.

Vargas did not allege Enterprise was negligent nor at fault nor that the lease was improper.

The 4th District certified the issue to the Supreme Court as a question of great public importance. Several similar cases in Florida are on hold pending a ruling.

It has also been an issue in other states including Minnesota, where the state Supreme Court in January ruled the Graves Amendment pre-empted a similar state law there.

Most of the litigation has been at the federal level. The 11th U.S. Circuit Court of Appeals in Atlanta also ruled Florida’s law was pre-empted in 2008. As a result, the Florida justices’ decision would apply only to state courts, Graham said. They did not indicate when they would rule.

Commercial General Liability Policy Covers 'Blast' Faxes: Florida Court

Wed, 03 Feb 2010 14:19:20 +0000

February 2, 2010

Commercial general liability (CGL) insurance policies generally cover liability for unsolicited “blast faxes” that violate federal law, a Florida court has ruled.

The Supreme Court of Florida issued its ruling Jan. 28 in a case involving a CGL policy provision on advertising injuries and the Telephone Consumer Protection Act (TCPA).

As a result, plaintiffs in a class action suit who sued Nextel South Corp. for violating their privacy by sending 24,000 blast faxes may be entitled to insurance benefits from Transportation Insurance Co. Transportation had sold the CGL insurance policy at issue to Southeast Wireless, an authorized agent of Nextel.

In June 2003, Michael Penzer filed a class action suit in a Florida state court against Nextel South Corp., alleging that Nextel or one of its agents sent him an unsolicited facsimile advertisement in violation of the TCPA. Nextel in turn filed a third-party complaint against Sunbelt, a blast-fax advertiser, and Southeast Wireless, an authorized agent of Nextel, seeking indemnity and contributions for any liability Nextel may have in the class action.

Nextel also alleged that Southeast Wireless hired Sunbelt to create the advertisement and that Nextel did not authorize the fax transmissions.

Penzer then filed a third-party complaint against Southeast Wireless requesting that Transportation Insurance Co., its commercial liability insurer, defend it in the class action. Transportation refused to provide a defense for the class action suit or the Nextel complaint, and also disclaimed any coverage.

The CGL policy provided coverage for advertising injuries and included in its definition of “advertising injury” an injury arising out of “oral or written publication of material that violates a person’s right of privacy.”

Transportation argued that the phrase “oral or written publication of material that violates a person’s right of privacy,” provided coverage only for injuries to privacy rights caused by the content of the material. Also, the insurer maintained that Florida law interpreting the phrase “publication . . . in violation of an individual’s right of privacy” makes clear that coverage exists only when private matters about one person are communicated to another person.

Transportation contended that the phrase “that violates a person’s right of privacy,” modifies the term “material,” as opposed to “publication,” and thus can only apply when the content of the material violates a person’s right of privacy. Only a violation of the secrecy right of privacy will trigger coverage, not a violation of seclusion, the insurer said.

Although Southeast’s conduct in having the commercial advertisements sent by facsimile may have violated the TCPA, there was no coverage under the policy because there were no content-based privacy violations, according to the insurer.

One lower court agreed with Transportation that there was no coverage, while on appeal the Eleventh Circuit court sided with Penzer and found that neither the policy language nor Florida public policy supported denial of coverage. The case then went to the state Supreme Court.

The Supreme Court agreed with Penzer, finding that the “plain meaning” of the CGL policy provision on advertising injury was to provide coverage for a written publication of material that violates a person’s right of privacy.

The court dismissed Transportation’s grammar-based argument. “Even if the phrase ‘that violates a person’s right of privacy’ only modifies the term ‘material,’ it does not follow that only the secrecy right to privacy is implicated because ‘material’ could also invade one’s seclusion,” the high court stated.

William G. Passannante of Anderson Kill & Olick, represented the nonprofit advocacy group United Policyholders in filing an amicus brief in support of finding coverage under the CGL.

“Given that many state courts that have made similar determinations, it’s remarkable that insurance companies continue improperly to dispute their clear obligation under liability insurance policies to cover ‘blast fax’ violations under TCPA,” Passannante said.