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Showing posts from August, 2011

Yacht Market in Brazil Reaches High Tide in Sales

The Associated Press has reported today that booming commodity prices fueled by Chinese demand, along with some of the world's biggest offshore oil discoveries, have created an expanding, new class of wealthy Brazilians. They, in turn, are boosting the international yacht market even as it suffers in the U.S. and Europe. The number of millionaire households in South America's biggest national is forecast to more than triple by 2020. Their spending, along with that of a newly swollen middle class, has protected Brazil more than any other nation in the region from economic shocks since 2008.

A May report on the geography of wealth from the U.S.-based consulting from Deloitte forecasts that U.S. and European national will remain the global centers for wealthy households during the next decade. Nonetheless, emerging market economies are reportedly likely to prove to be more dynamic in terms of growth rates, creating significant opportunities for wealth managers seeking to gain a s…

Pushing the Limits of Contractual Indemnity

Encountering indemnity agreements in contracts and leases is common, and parties and the courts are constantly exploring the limits to which a party can be indemnified, even if the incident occurred because of its own negligence and/or on property it exclusively controlled.  One such case was recently decided in Constable v. Northglenn, LLC, 2011 Lexis 232 (Colo. March 21, 2011).  While this case was not decided in Florida, it is instructive on why such clauses attract litigation.
Northglenn was the owner of a shopping center and Constable leased commercial space from Northglenn.  A lawsuit was filed by a woman who slipped on ice in the shopping center parking lot.  The tenant, Constable, asserted that the indemnity provision in the lease favoring Northglenn was void as against public policy because it failed to clearly express an intent to indemnify Northglenn for its own negligence, and because it attempted to relieve Northglenn of “nondelegable duties” for which Northglenn had …

Broward County Approves MOU Regarding Containerized Cargo at Port Everglades

Today, the Broward County Board of County Commissioners today unanimously approved a Memorandum of Understanding (MOU) with the Florida East Coast Railway (FEC) to construct and operate an Intermodal Container Transfer Facility (ICTF) on 42.5 acres of land at Port Everglades.
The ICTF in the Southport area of Port Everglades will facilitate the transfer of containerized cargo through the Port onto the FEC rail line via a connecting rail spur. The proposed ICTF is unique compared to similar facilities in other ports in that both domestic and international cargo would be handled on the site. These cargos are currently being handled on a 14-acre site on Andrews Avenue owned by the FEC. A combined near-dock facility at the Port should result in competitive transfer and shipping fees for port clients, thus increasing the Port's competitive advantage compared to other ports. Positive environmental benefits are also envisioned by the reduction of truck traffic on local roadways. By reloc…

Arbitration Award in Yacht Construction Contract Upheld

In CAT CHARTER, LLC v. SCHURTENBERGER, 23 Fla. L. Weekly Fed. C106a (11th Cir.July 13, 2011), the U.S. Court of Appeals for the Eleventh Circuit issued a detailed opinion on what is required in rendering an arbitration award. It is a "must read" for lawyers and parties that insert arbitration clauses in their yacht construction clauses.


This case arises out of a dispute over the construction of a yacht. Daniel and Patricia Ryan are Massachusetts citizens who, in anticipation of retirement and with an eye toward the construction of a vessel, formed a Delaware limited liability corporation, Cat Charter, LLC (“Cat Charter”). The Ryans, through Cat Charter (collectively, the “Plaintiffs”), agreed to pay Mutihull Technologies, Inc. (“MTI”), a Florida business owned solely by Walter Schurtenberger (collectively, the “Defendants”), to construct a vessel to be known as the Magic.But the Defendants never delivered the Magic, despite receiving roughly $2 million from the Plaintiff…

US Supreme Court Weighs In On Personal Jurisdiction Over Foreign Companies

For the first time in more than two decades, the U.S. Supreme Court has weighed in on issues of personal jurisdiction. On June 27, 2011, the Court addressed the constitutional limits of "general" and "specific" jurisdiction in Goodyear Luxembourg Tires, S.A. v. Brown, No. 10-76, 564 U.S. __ (June 27, 2011), and J. McIntyre Mach., Ltd. v. Nicastro, No. 09-1343, 564 U.S. __ (June 27, 2011).In Goodyear Luxembourg Tires, S.A. v. Brown, a unanimous Court held that a court may only exercise general jurisdiction over a foreign defendant where the defendant's contacts in the forum state are "continuous and systematic." Importantly, the Court held that merely placing a product in the "stream of commerce" with the expectation that the product might be bought or sold in the forum state falls "far short" of the continuous and systematic contacts necessary to establish general jurisdiction.

In J. McIntyre Mach., Ltd. v. Nicastro, a majority of t…

Offer of Judgment Invalid Where Insurer Required to Tender in Excess of Policy

In GONZALEZ v. CLAYWELL, 36 Fla. L. Weekly D1784a (Fla. 1st DCA August 15, 2011), the plaintiff issued a proposal for settlement to the defendant.  As background, the State of Florida Offer of Judgment Statute creates a right to recover reasonable costs and attorney’s fees incurred after a settlement offer is made when (1) a party has served a demand or offer for judgment, and (2) that party has recovered at trial a judgment at least twenty-five (25) percent more or less than the demand or offer. Dictiomatic, Inc. v. United States Fidelity & Guaranty Company, 127 F. Supp. 2d 1239, 1244 (Fla. 1999).

In the case at bar, the plaintiff suffered significant injuries in a vehicular collision and offered to settle her lawsuit for $240,000, if Gonzalez's insurance company, GEICO, tendered a check in the amount of $240,000 made payable to her. The offer was not accepted and, after a jury trial, the plaintiff was awarded a total judgment of $394,029.71, which was affirmed on appeal. Gonz…

Class Action Suit Against Royal Caribbean Cruises Ltd.

The Maritime Executive reported today that all persons or entities who purchased Royal Caribbean securities from April 23, 2009 through and including July 27, 2011 ("Class Period") have filed a class action lawsuit against Royal Caribbean Cruises Ltd. and certain of its officers, alleging violations of Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. Sections 78j(b) and 78t(a); and SEC Rule 10b-5 promulgated thereunder by the SEC, 17 C.F.R. Section 240.10b-5.
The Complaint alleges that throughout the Class Period, defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the company's business, operations, and prospects. Specifically, the defendants are alleged to have made false and/or misleading statements and/or failed to disclose that: (1) the company improperly accounted interest expenses related to the amortization of certain financing fees related to certain of the company's export credit agency guara…

Southern District Denies Joinder of Non-diverse Defendants in Coverage Action

In IBIS VILLAS AT MIAMI GARDENS CONDO ASS'N, INC. v. ASPEN SPECIALTY INSURANCE CO., 23 Fla. L. Weekly Fed. D21a (S.D. Fla. May 24, 2011), Judge Abalberto Jordan, President Obama's nominee for the U.S. Circuit Court for the Eleventh Circuit Court of Appeals, held that the plaintiff should not be permitted to join the additional non-diverse defendants in an attempt to defeat the court's diversity jurisdiction. This case is an important one, as insurers routinely attempt to remove cases to federal court on diversity of citizenship grounds. It is considered by most out-of-state insurers that federal court, rather than state court, is a more preferential forum for insurers.

In October of 2010, Ibis Villas filed a one-count complaint against Aspen Specialty Insurance Co. and James River Insurance Co. in Florida state court for breach of contract. Ibis Villas alleges that the defendants breached insurance policies issued to it by failing to provide coverage or payment for damages …

Justice for Sale? A Review of Private Trials in Florida

Private trials have been an option for Florida for 12 years. A judge-for hire renders a decision that must be rubber-stamped by a circuit judge but can be appealed. Only a few attorneys have offered the service, and most are retired judges. They report its use remains rare. In last several months, numerous individuals have written about Florida's law allowing private trials since 1999 and admit that few lawyers even know that the statute allowing such trials even exists.

No one has promoted the cause more than retired Miami-Dade Circuit Judge Paul Siegel, who advertises offering his first trial for free. Siegel argues that the time has come for lawyers to embrace this option, which offers a speedy trial that likely costs upwards of $20,000. Siegel argues that while the price seems hefty, for cases destined for trial, it offers potential savings by avoiding delays.

Those of us who practice in Miami-Dade county know what these delays are--a rolled-over trial calendar after months sp…

A Federal District Court Approves Medicare Set-Aside

On July 28, 2011, the Federal District Court for the Western District of Louisiana in Schexnayder v. Scottsdale Insurance Company, (2011 U.S. Dist. LEXIS 83687) approved a Medicare Set-Aside in a personal injury case brought in the District Court under its diversity jurisdiction.  The matter was settled and a Medicare Set-Aside specialist determined that the appropriate Medicare Set-Aside from the settlement was $239,253.84.  The matter was submitted to CMS who took no action, leaving the parties at a loss on how to obtain approval of the Medicare Set-Aside amount, which was a condition of the settlement.  The plaintiff and defendants made a joint application to the court for approval and the U.S. Magistrate ordered service to be made on the Secretary of Health and Human Services for an evidentiary hearing that was ordered to be conducted in order to determine approval or modification of the proposed set-aside amount.  Health and Human Services advised the court that it would not part…

Is There Caveat Emptor When It Comes to Purchasing the "Love Boat"?

In the case of QUAIL CRUISES SHIP MANAGEMENT LTD. v. AGENCIA DE VIAGENS CVC TUR LIMITADA, 23 Fla. L. Weekly Fed. C92a (11th Cir.July 8, 2011), Quail Cruises Ship Management Ltd. (“Quail”) appeals from the district court's order dismissing its amended complaint for lack of subject matter jurisdiction. The Eleventh Circuit Court of Appeals vacated the district court's order and remand for further proceedings.
Quail, a cruise ship operator, alleged in its amended complaint that the defendants conspired to induce it to purchase the M/V Pacific (“vessel”) -- better known as the eponymous Love Boat from its television days of the 1970s and 1980s -- by fraudulently misrepresenting the vessel's deteriorating and defective condition. Quail alleged that the fraud was orchestrated by Agencia de Viagens CVC Tur Limitada (“CVC”), a tour operating company, and its President Valter Patriani. According to Quail, CVC directed Seahawk North America, LLC (“Seahawk”), a ship management compan…