Wednesday, February 20, 2013

3d DCA Watch -- Welcome to the New Frontier!


 The key word is survival.....

UM v. Great American Ins.

Where there is a conflict between co-defendants, you have to pay for more than one counsel:
In the case before us, there exists a conflict in the co-defendants’ legal defenses, based on the allegations of the complaint, that each defendant is directly liable, and the allegations in the answer and affirmative defenses set forth by MagiCamp and UM. MagiCamp answered and asserted the affirmative defense that, as alleged, through no fault of its own, but through the fault of another entity, UM, the minor camper was injured, for which it was entitled to indemnification and contribution; and conversely, UM presented its position by way of letter, that, through no fault of its own, but through the fault of MagiCamp, the camper was injured. These allegations create diverse legal positions that are inherently adverse. These conflicting legal positions presented in defense to individual active negligence claims against MagiCamp and UM exist separate and apart from issues of coverage or excess policy limits.  In this case, single defense counsel was provided by Great American to defend both MagiCamp and UM and to present adverse legal theories. There exists no factual dispute, as evidenced by the record, that, in defense of both co-defendants, Great American’s counsel would have had to argue conflicting legal positions, that each of its clients was not at fault, and the other was, even to the extent of claiming indemnification and contribution for the other’s fault. In so doing, legal counsel would have had to necessarily imply blame to one co-defendant to the detriment of the other. On these facts, we believe this legal dilemma clearly created a conflict of interest between the legal defenses of the common insureds sufficient to qualify for indemnification for attorney’s fees and costs for independent counsel.
But Judge Shepherd in dissent sees something else:
 The court today opens a new frontier in insurance litigation of benefit only to the legal profession.
Ok, he says that like it's a bad thing!

Sunshine State v. Davide:

Speaking of fees, Judge Adrien affirmed on a fee award after an evidentiary hearing.

Here's an oldie but a goodie:
As with other discretionary decisions, we must affirm the order of the trial court if reasonable people could differ as to the propriety of the action taken. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).
But why oh why can't we just substitute our judgment for that of the trial court?

D'Amico v. Ferrera:

Stopped in its tracks:
 Affirmed on the authority of Florida Rule of Appellate Procedure 9.315(a).  Fla. R. App. P. 9.315(a) (“After service of the initial brief . . . the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.”).
Ouch!  That's like losing a boxing match before your opponent even steps into the ring.

Prepare to meet the challenge of the new frontier....

6 comments:

Anonymous said...

An insurance company's best friend.

Anonymous said...

Anyone check the age of the first decision? It's been pending over two and a half years!

Anonymous said...

Rumpole is doing a great job defending cop killer Dennis Escobar.

Anonymous said...

I miss the good ole' days when opinions of the district courts of appeal were like one or two pages long.

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