Wednesday, December 24, 2014

3d DCA Watch -- Merry Christmas, Your Judgment Has Been Reversed!


It's a Christmas miracle -- the 3d actually released some opinions today:

St. Paul v. Llorente:

A lawyer negligently disbursed funds from a trust account (allegedly) but the malpractice carrier -- surprise! -- found some obscure exclusion.

The 3d reversed -- Merry Christmas:
In sum, we conclude that this claim falls squarely within the policy exclusion providing that there is no coverage for any claims “arising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others.” Llorente did not “safeguard” the $1.5 million entrusted to her when she disbursed that sum before she was authorized to do so. The trial court’s decision is reversed and the case remanded for entry of summary judgment in St. Paul’s favor, resulting in no coverage for Llorente.
In what some would say is a counter intuitive move, Judge Shepherd dissents:
The question on this appeal is whether an attorney who is alleged to have negligently disbursed $1.5 million from an escrow account for which she was responsible, has also failed to “safeguard” those funds within the meaning of an exclusion from coverage, appearing in a Lawyers Professional Liability Insurance Policy, which excludes “claims: . . . [a]rising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others.” (emphasis added). The intuitive answer to the question is “yes.” However, as the following discussion will demonstrate, it is dangerous to intuit the law.
Not sure exactly what that means, but it sounds like the application of "truthiness" in a legal setting.

Judge Shepherd is back, this time wading into the same-sex marriage controversy with a decision dismissing a lesbian couple's attempt to get a divorce in Florida of an out-of-state marriage:
We begin by stating what this case is not about. This case is not about the constitutionality or merits of same-sex marriage. The parties did not raise the constitutionality of section 741.212 in the trial court or as a point on appeal before us. In fact, they urge us to reverse the decision below in order to avoid constitutional issues.1 The statute the parties wish us to “interpret” reads as follows; 
Section 741.212. Marriages between persons of the same sex(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
§741.212, Fla. Stat. (1997) (emphasis added). Oliver and Stufflebeam argue that on plain reading, the statute by its terms applies only to marriages, not divorces.

While seductive in its simplicity, their argument lacks support in either law or the rudiments of logic. Simply stated, one cannot dissolve a marriage where there is not a marriage to dissolve.
Is this argument really "seductive"?

Or merely "intuitive"?

What a wonderfully backward, retrograde State we live in.

Happy holidays (Bill O, you have not won yet)!


3 comments:

Anonymous said...

Reminds me of Dred Scott.

Anonymous said...

Yet another reason never to pay a malpractice premium.

I took the money others pay to insurance companies and paid off the mortgage on my homestead. Then, the wife and I bought an apartment complex which we hold as a Tenancy by the Entirety, (which will, justifiably, piss off Godwacker).

Insurance is for suckers.

Anonymous said...

More noteworthy than the result in the insurance case was Judge Wells' crappy grammar: "The trial court found the exclusion inapplicable, we disagree." Good enough for the Florida skool system?