Wednesday, April 25, 2012

3d DCA Watch -- Little Victories, Or a Tale of Two Judges.



You think it's hard for practitioners to make sense of Florida law sometimes, well it's not so easy for our appellate judges either.

Consider Judges Ramirez and Shepherd.

They both have Fidelity-Philadelphia Trust Co. v. Ball, 208 So. 2d 282 (Fla. 3d DCA 1968) as potential authority in a case where two Co-Trustees paid their own fees without court approval from the trust, leaving inadequate funds in the trust to pay an award of fees to the Beneficiary's counsel, after a full trial in which the Beneficiary prevailed.

The issue is whether the Beneficiary should have filed a separate suit against the Co-Trustees for breach of fiduciary duty and served them in their individual capacity.

Judge Ramirez in a concurrence finds that Fidelity is "totally different," while Judge Shepherd finds "the facts of Fidelity to be indistinguishable from the facts of the case before us."

Huh?

How can it be both?

I guess that's why we have appellate courts.

South Florida Coastal Elec. v. Treasures on the Bay:

Here Judges Ramirez and Lagoa disagree on whether the defendant injected "agency" as an issue in a breach of contract claim by asserting a"vague" affirmative defense.

Huh?

Gotta love state court.

Geico v. Virtual Imaging:

Judge Rothenberg continues her dissent from Geico I involving how PIP insurers should treat the fee schedule in paying reasonable expenses for medical claims, and they all certify the following super important very important muy importante question to the wise elders in Tally:
WITH RESPECT TO PIP POLICIES ISSUED AFTER JANUARY 1, 2008, MAY THE INSURER COMPUTE PROVIDER REIMBURSEMENTS BASED ON THE FEE SCHEDULES IDENTIFIED IN SECTION 627.736(5)(a), FLORIDA STATUTES, EVEN IF THE POLICY DOES NOT CONTAIN A PROVISION SPECIFICALLY ELECTING THOSE SCHEDULES RATHER THAN “REASONABLE MEDICAL EXPENSES” COVERAGE BASED ON SECTION 627.736(1)(a)?
Why is it still the convention to "all cap" questions certified to the Supremes -- will they not see it otherwise?

Little victories.....

2 comments:

  1. I love your comment about all-caps for certified questions.

    ReplyDelete