Wednesday, May 30, 2012
My ultimate conclusion in my presentation is that the casualty would not result in a hardening of the hull market and that the liability insurers were well placed to adequately deal with the matter.
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Tuesday, May 29, 2012
The prosecution was handled by Assistant U.S. Attorney Jaime Raich (a former colleague for a short time) and Trial Attorney Kenneth Nelson, of the Environmental Crimes Section of the Justice Department’s Environment and Natural Resources Division. Sentencing is currently scheduled for August 2, 2012, in Miami.
The full article from the Maritime Executive can be seen here => http://www.maritime-executive.com/article/man-convicted-for-obstruction-of-justice-false-statements-for-certifying-ships-safe-for-sea.
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Wednesday, May 23, 2012
The facts are as follows--the Plaintiff, a Florida citizen, initiated her action in state court, naming a Virginia corporation as the sole defendant. Later, the Plaintiff amended her complaint, adding the company's store manager and a Florida resident as a defendant. In the operative complaint, the Plaintiff brought separate negligence counts against the two defendants for the injuries that she allegedly sustained from falling in the parking lot at the company's store. The company removed the action to federal court, alleging that complete diversity of citizenship existed and that the amount in controversy exceeded the requisite amount by law. To overcome the fact that both the Plaintiff and the store manager were Florida citizens, which would normally defeat diversity, the company argued that the store manager's citizenship should be disregarded because he was fraudulently joined solely to avoid federal jurisdiction. The Plaintiff then moved to remand the case to state court, insisting that the store manager was properly joined and that amount in controversy is less than seventy-five thousand dollars.
In finding fraudulent joinder, the court first pointed out that Florida courts have held that a corporate officer may be held individually liable for personal injuries caused to third parties provided several factors are present. The necessary elements are: (1) the corporation owes a duty of care to the third party, the breach of which has caused the damage for which recovery is sought; (2) the duty is delegated by the principal or employer to the defendant officer; (3) the defendant officer has breached this duty through personal -- as opposed to technical or vicarious -- fault; and (4) with regard to the personal fault, personal liability cannot be imposed upon the officer simply because of his or her general administrative responsibility for performance of some function of his or her employment. The corporate officer must have a personal duty towards the injured third party, breach of which specifically has caused the party's damages. However, the court found that the Plaintiff had not rebutted the store manager's denial that he personally breached any duty owed to the Plaintiff -- the third element required.
The court also evaluated the amount in controversy requirement in federal court and noted that where the jurisdictional amount is not apparent from the complaint, the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed. The court evaluated the evidence and found that the defendant had established that the jurisdictional minimum has been met. Therefore, the court found, the proponent's estimate of the claim's value must be accepted unless there is a “legal certainty” that the claim is actually for less than the jurisdictional amount. Because the Plaintiff presented no evidence or argument that such a certainty exists, her assertion that she may not recover the full jurisdictional amount was found "unavailing".
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Thursday, May 17, 2012
The insurer supported its arguments that such discovery is not discoverable with numerous citations to state court cases that stand for the general proposition that discovery related to bad faith claims is improper in a first-party insurance breach of contract action. Nevertheless, consistent with Buckley Towers Condominium, Inc., v. QBE Insurance Corp., 2008 WL 2645680 (S.D. Fla. June 26, 2008), the Court found that the questions were relevant to whether an insurer's initial determination that damages did not exceed deductible was reasonable and also to rebut claims of fraud alleged by insurer. The Court explained "[t]hat there is some overlap with this evidence and evidence that is relevant to a bad faith claim is of no consequence where, as here, the probative value of that evidence to the breach of contract claim outweighs any prejudice to [the insurer]."
In addition, the Court found that insurance company's counsel's instructions to deponent not to answer based on relevancy and objections to form did not comply with federal rules of procedure or applicable authorities and cited Federal Rule of Civil Procedure 30, which provides, in relevant part:
What this case reminds us is that just because Florida state court cases tell us generally that claims handling procedures and other such issues are not normally discoverable at the breach of insurance contract stage, the federal courts will look to its procedural rules to decipher what is and what is not discoverable. Rule 30 is very limited on what is not discoverable. Therefore insurers will need to be extra vigilant in the affirmative defenses it chooses to employ in defending a breach of contract action in Florida, as more than just the original contractual dispute itself may be at issue in discovery.
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