Monday, May 5, 2014

In Unpublished Opinion, 11th Relies on Unpublished Opinion To Reverse District Court!

How persuasive are unpublished 11th Circuit opinions?

Let's put it this way -- if you have 'em, use 'em:
After reviewing the record, reading the parties briefs, and having the benefit of oral argument, we conclude that our court’s recent decision in Evanston Insurance Company v. Design Build Interamerican, Inc., etc. et al., __ F. App’x ___, (No. 12-15466) (11th Cir. Apr. 8, 2014), is persuasive and controls the disposition of this case.2 Like the panel in Evanston, we conclude that the reasoning and holding of Premier Ins. Co. v. Adams, 632 So. 2d 1054, 1056–57 (Fla. Dist. Ct. App. 1994), governs our interpretation of the severability and exclusionary provisions of Nautilus’s policy in this case. Accordingly, based on Evanston and Premier, we reverse the district court’s order granting summary judgment in favor of Nautilus and remand this case for further proceedings consistent with this opinion.
And here's footnote 2:
The opinion in Evanston is unpublished and therefore not binding on this panel but may be considered as persuasive authority. See 11th Cir. R. 36-2.
So what are they, exactly?

Who knows, but cite to your heart's content!


9 comments:

  1. As the rule states, unpublished opinions may be cited as persausive authorirty, and therefore the Eleventh Circuit may consider them to be persausive (if they are). But that's about it. They most certainly don't receive the same attention as published opinions. And some of them are downright sloppy. See, e.g., Ruthann Robson, Argument Analysis: How Wrong Was the Eleventh Circuit About the First Amendment Protections for a Public Employee's Subpoeaned Testimony?, SCOTUSBlog (Apr. 29, 2014, 5:13 pm). In short, cite them at your peril, and never cite them for a proposition stated in a published opinion. Have some pride in your work product.

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  2. The Jon Snow of precedent.

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  3. 11:16. LMAOROG

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  4. The Captain has sunk Rumpole's blog with a post so poorly written, people are reporting getting ill after reading it. Be advised.

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  5. I'd have to agree. If it's there you have to use it your benefit. But once you start breaking rules to get what you need then that's when my moral compass is surpassed.

    Aaron Carter | http://iminjurednow.com/personal-injury.html

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  6. Well played, 11:16

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  7. OOH! OOH! "GAMERS!" How creepy.....

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  8. robert rosenblattMay 5, 2014 at 3:26 PM

    The opinion does not explain the underlying facts. Both Evanston and Nautilus insured the same general contrator,Design Built. Judge Miller in state court granted a summary judgment in favor of DBI and an other defendant. On January 22,2014 the 3rd reversed. See Pena v. DBI at 3d12-2654. Judge Seitz granted summarly judgments on a dec action filed by Evanston and Nautilus. We appealed to the 11th. In December,2013 the 11th reversed Evanston finding coverage. Judge Martin was on the panel and later on the Nautilus panel as well. Both polcies were nearly identical on the language on exclusions. We settle with two other defendants for 4 million and feel that both Evanston and Nautilus are now in bad faith. The Pena opinioin stated the the Plaintiff was in a "persistent vegetative state". So although both opinions were unpublished they involved the same issue and the 11th was correct in citing the unpublished opinion . Hope this clears things up. Robert Rosenblatt

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  9. Thanks for your comment Robert! Congratulations.

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