В сложной финансовой ситуации приходит на помощь кредит наличными в Казахстане.

Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

Posted by David Adelstein on April 16, 2019
Trial Perspectives / Comments Off on Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

What are the damages caused by the WRONGFUL recording of a lis pendens, and I am referring to a lis pendens NOT founded on a duly recorded instrument (e.g., not founded on a mortgage) or a statute (e.g., not founded on a construction or assessment lien)?  These are damages that should be accounted for in a lis pendens bond

The recent opinion in LB Judgment Holdings, LLC v. Boschetti, 44 Fla.L.Weekly D693a (Fla. 3d DCA 2019), relying on Haisfeld v. ACP Florida Holdings, Inc., 629 So.2s 963 (Fla. 4thDCA 1993), explained:

Haisfield looks back at losses that were actually suffered by a property owner from a lis pendens found to be unjustified, rather than at prospective losses that might be suffered. Its methodology is the best yardstick for evaluating the market value component of damages that may result from a wrongfully-filed lis pendensHaisfield instructs that such damages, if any, are measured by any decline in market value between the time the lis pendens is recorded and the time it is discharged. The proponent of a lis pendens might pay no damages if the market value increased substantially during that time. 

Haisfield also recognizes that the expenses of preservation and maintenance of the property subject to a lis pendens may be awarded for the interval between recordation and discharge if the lis pendens is found to be unjustified and the expenses are a consequence of the unjustified lis pendens.

Now, what about loss of investment return / lost opportunity?  For example, what if the lis pendens impacts a sale where there is a net market value for the property of “X” after taking the fair market value and deducting brokerage commissions, mortgage debt, and past due taxes.  This amount would ultimately represent equity in the property that if the party had could then earn interest—in other words, there is a loss of use of that equity.  See, e.g., LB Judgment Holdings, supra (party posting lis pendens bond proffered expert to produce computation to support what lis pendens bond amount should be; although the court required a higher lis pendens bond amount).  However, this loss of investment return / lost opportunity could be a damages methodology in different situations as it pertains to a real property dispute depending on the circumstances of that dispute.

Also, attorney’s fees should be factored into the lis pendens bond that “foreseeably may be incurred in discharging a lis pendens.”   S and T Builders v. Globe Properties, Inc., 944 So.2d 302 (Fla. 2006); accord LB Judgment Holdings, supra (rejecting argument that attorney’s fees include fees incurred during entire litigation as entire litigation is beyond fees incurred in discharging lis pendens).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Affirming Summary Judgment when there are Competing Expert Affidavits

Posted by David Adelstein on April 07, 2019
Evidence, Trial Perspectives / Comments Off on Affirming Summary Judgment when there are Competing Expert Affidavits

 

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” “Summary judgment is designed to test the sufficiency of the evidenceto determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” Because summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-moving party still could not prevail at trial as a matter of law.

A court considering summary judgment must avoid two extremes. On the one hand, “a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact.” On the other hand, a “party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict.”

Gonzalez v. Citizens Property Ins. Corp., 2019 WL 1141236, *3 (Fla. 3d DCA 2019) (internal citations omitted).

The case of Gonzalez is a summary judgment case that I do not agree with it because it involves competing experts — a common scenario in many types of litigation.  It is a case where an insured sued its insurer for coverage under a property insurance policy.  Each side had an expert witness that opined as to the cause of a leak, which was an important issue as it pertained to whether the water damage was covered under the property insurance policy. 

The insurer moved for summary judgment based on its expert’s opinion that the leak was the result of normal wear and tear and thereby excluded under the policy.  The insured countered the summary judgment with an affidavit from its expert that the leak was due to wind damage which was covered under the policy.   The insured’s expert, however, inspected the roof after the roof was already replaced and, thus, the court concluded that this opinion was nothing more than conjecture that lacked “the required ‘discernible, factually-based chain of underlying reasoning’ necessary for an expert opinion to be admissible in evidence.”  Gonzalez, 2019 WL at *4.  The expert also based his opinion on wind speed which caused the damage that led to the leak by reviewing wind speeds in other locations around the day of the incident.  The court found that this was also nothing more than conjecture since relying on wind speed in one location to determine wind speed in a different location is not reliable.  Id. at *5. 

The reason I do not love this opinion–where the appellate court affirmed summary judgment in favor of the insurer–is because there were competing experts that rendered different opinions as to the cause of a leak.  There is nothing uncommon about competing experts and nothing uncommon about the fact that experts differ as to causation (or anything else regarding their respective opinions).  Experts rely on hearsay and assumptions and there are many times holes can be poked in the assumptions or the opinions extrapolated from the assumptions.  But, in my opinion, this should create a genuine issue of material fact for a jury to determine while assessing the credibility of the expert’s opinion and which opinion makes most sense as to the cause of a water leak.   An expert is not going to have personal knowledge because most experts, even the insurer’s expert in this case, are retained after-the-fact, e.g., after the leak occurred, the damage was discovered, and the loss reported to the carrier. 

 

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Proving Entitlement to a “Trade Secret”

Posted by David Adelstein on March 24, 2019
Trial Perspectives / Comments Off on Proving Entitlement to a “Trade Secret”

A recent case, Managed Care of North America, Inc. v. Florida Healthy Kids Corp., D735a (Fla. 1st DCA 2019), discusses the standard in proving entitlement to a “trade secret,” as defined by Florida law (below).  

In this case, bidders submitted proposals to a public body in response to an Invitation to Negotiate. In responding to the proposal, one of the bidders marked certain pages confidential as a trade secret, which is not uncommon.   A losing bidder sought to obtain this information under Florida’s Public Record’s Act and the bidder maintaining the trade secret protection filed a motion for declaratory relief asking the trial court for a declaration as to whether the information it marked confidential was exempt from public disclosure under Florida’s trade secret protection. 

Section 812.081(1)(c), Florida Statutes, defines “trade secret” as:

[T]he whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. The term includes any scientific, technical, or commercial information, including financial information, and includes any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be:

      1. Secret;
      2. Of value;
      3. For use or in use by the business; and
      4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it

when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

The First District Court of Appeal held that once the bidder maintaining the trade secret protection proved: (1) the information was used in the operation of its business; (2) the information provided the business an advantage or the opportunity for an advantage; and (3) importantly, the bidder took measures to prevent its disclosure (and, of course, the information is NOT readily accessible to the public), “the information is deemed protected trade secrets; and, by its very nature, the trade secrets are considered, as a matter of law, to be “of value.” Managed Cared of North America, supra.    Separately proving “of value” is not a required element of establishing the information is a trade secret. However, to prove entitlement to a trade secret, the “party must not only label the information as secretive [or confidential], but must also prove a business advantage or an opportunity to obtain an advantage.”  Managed Care of North America, supra. Once the party satisfies this burden, the information is “as a matter of law and by its very nature, considered ‘of value.’”  Id

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease

Posted by David Adelstein on February 24, 2019
Standard of Review, Trial Perspectives / Comments Off on Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease

“’In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party.Zurich Am. Ins. Co. v. Puccini, LLC, 2019 WL 454222, *1 (Fla. 3d DCA 2019) (citation omitted).   The standard of review associated with reviewing a trial court’s order granting a motion to dismiss with prejudice is de novoId.  

In Puccini, a commercial tenant operating a restaurant caused a fire. The fire resulted in significant damage to the commercial landlord’s building – the landlord’s property insurer paid it over $2.1 Million.    The insurer then, as a subrogee to the landlord, brought a subrogation action against the tenant that caused the fire damage.  The trial court granted the tenant’s motion to dismiss the subrogation action based on the tenant’s argument that it was an implied co-insured under the landlord’s insurance policy and, of course, an insurer cannot pursue a subrogation action against its own insured. 

The appellate court reversed the trial court’s dismissal finding that to determine whether a landlord’s insurer can pursue a subrogation action against a tenant, a court needs to adopt the case-by-case approach.  Under this approach, “there is no presumption if favor of or against subrogation; rather, the [commercial] lease-as-a-whole is examined in order to ascertain the intent of the parties as to who should bear the risk of loss for damage to the leased premises caused by the tenant’s negligence.”  Puccini, 2019 WL at *2 (internal quotations omitted).   The appellate court, examining the lease-as-a-whole attached as an exhibit to the lawsuit, found that the tenant bore the risk of negligence and was not an implied co-insured with the landlord.

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

 

 

 

 

 

 

 

 

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Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

Posted by David Adelstein on February 17, 2019
Trial Perspectives / Comments Off on Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”).  A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount.  (See this article for more on proposals for settlement).

For a plaintiff (party seeking affirmative relief), the plaintiff must obtain a judgment 25% greater than the proposal for settlement amount. When there are multiple defendants, the plaintiff needs to serve a proposal for settlement on each defendant. 

In Cassedy, Jr. v. Wood,44 Fla.L.Weekly D422a (Fla. 1st DCA 2019), a landlord sued his tenants for breach of a lease when the tenants vacated the property and stopped paying rent.  The lease agreement provided that if collection was required by the landlord, the tenant was required to pay 10% of the judgment amount to cover attorney’s fees.  I have no clue why the attorney’s provision in the lease included this language versus the standard prevailing party attorney’s fees language.

The landlord, obviously knowing the lease would not make him whole for purposes of recovering his attorney’s fees based on that interesting attorney’s fees language, also served a proposal for settlement on each of his tenants.  The proposal for settlement required each tenant, independent of the other tenants, to pay the landlord $25,000.   If the landlord recovered a judgment 25% greater than any proposal for settlement amount, the landlord would now have an argument to recover his attorney’s fees from the date he served the proposal for settlement on forward.

The landlord recovered a judgment of $83,657.60 against the tenants.  The tenants were jointly and severally liable for this amount, meaning they were ALL on the hook for this total amount and the landlord could collect this judgment amount from any one or a combination of the tenants.  This makes sense since likely all of the tenants were on the lease and signed the lease.

The trial court denied attorney’s fees pursuant to the proposal for settlements, which was subject to a de novo standard of appellate review.  The appellate court reversed.

The tenants argued the separate $25,000 proposal for settlement amounts should be aggregated (totaling $75,000) for purposes of determining whether the judgment amount was 25% greater than the proposals for settlement amount for purposes of determining whether attorney’s fees should be awarded.  This was shot down on appeal.  There is no requirement that separate proposals for settlement be aggregated and there was no dispute that the landlord recovered a judgment against all the defendants ($83,657.6) 25% greater than the $25,000 proposal for settlement amounts, especially since all of the tenants were jointly and severally liable for the judgment.

The tenants also argued that the landlord could not recover attorney’s fees pursuant to the lease and also through a proposal for settlement.  This was shot down on appeal.  “Based on the imposition of a penalty pursuant to section 768.79 [Florida Statutes] and its mandatory application if all requirements are met, we find a party is not precluded from receipt of attorney’s fees under a contract and the [proposal for settlement] statute simultaneously.”  Cassedy, Jr., supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition

Posted by David Adelstein on February 10, 2019
Trial Perspectives / Comments Off on Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition

 

Even with an open and obvious dangerous condition, there may still exist a duty to maintain the property and repair that same condition

In Middleton v. Don Asher & Associates, Inc., 44 Fla.L.Weekly D301d (Fla. 5th DCA 2019), the plaintiff was a unit owner in a condominium for 15 years. She slipped and fell while she was walking on the condominium’s premises.  In particular, she slipped and fell on a sidewalk that contained uneven joints between two concrete segments.  She sued her condominium association and property manager for negligence in a premise liability action.  The sidewalk was apparently a common element required to be maintained by the association. 

The condominium association and property manager filed a motion for summary judgment claiming that the plaintiff’s premise liability claim fails as a matter of law because the condition of the sidewalk was open and obvious and did not constitute a hidden, dangerous condition.  The plaintiff countered that even if the condition was open an obvious, a fact issue remained whether the association and management company should have anticipated that condominium residents would use the sidewalk and, therefore, repair that condition.   The trial court granted summary judgment holding that the condition of the sidewalk was open and obvious and did not constitute a hidden, dangerous condition.   This was reversed on appeal.

[T]he duty owed to invitees is ‘1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely warning of latent or concealed perils which are known or should be known by the owner or occupier.’… The obvious danger doctrine recognizes that owners and occupiers should be legally permitted to assume that an invitee will perceive that which would be obvious upon the ordinary use of their own senses.” Middleton, supra (internal citations omitted).

The plaintiff was an invitee as she lived in the condominium.  There is law that finds that uneven floor levels are an open and obvious condition, so this did not appear to be a disputed issue.  Yet, although this means an owner may not have a duty to warn others of the open and obvious condition, this does not discharge the owner’s duty to “maintain the property in a reasonable safe condition by repairing conditions that they foresee will cause harm.”  Middleton, supraStated differently, the obviousness of a dangerous condition does not relieve an owner’s duty to repair that same condition.   

Here, if the property manager and association anticipated others would use the sidewalk and encounter the open and obvious condition, they still had a duty to maintain the sidewalk in a reasonably safe condition.  If they could anticipate others would use the sidewalk with the open and obvious dangerous condition, then, naturally, it could be anticipated that others could be harmed by that condition.  This does not mean that the plaintiff would not be found comparatively negligent for getting hurt on the open and obvious condition, it just means the association and property manager may have been negligent for not acting reasonably to maintain and repair the condition.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Stormwater Runoff from Upper Landowner to Lower Landowner and “Reasonable Use” Rule

Posted by David Adelstein on February 04, 2019
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The recent decision in Coachwood Colony MGP, LLC v. Kironi, LLC, 44 Fla.L.Weekly D340a (Fla. 5thDCA 2019) discusses the burden an upper landowner owes to a neighboring lower landowner when it comes to stormwater runoff / drainage.  The upper landowner is at a higher elevation than the lower landowner so the issue becomes the flow of stormwater from the upper landowner’s higher elevation property to the neighboring lower elevation property.  The flow of stormwater can result in washout, flooding, and loss of use and enjoyment to the lower elevation property, which is where the issue lies.

The Florida Supreme Court discussed the “reasonable use” rule that is applied to BOTH the upper and lower landowners:

The principle that an upper landowner enjoys an easement across the lower tract for all naturally occurring surface water continues to apply to land in its natural state. However, when any party improves his land, thereby causing surface waters to damage his neighbor’s property, the reasonable use rule shall be applied in order to settle the controversy. The rule applies not only in cases involving the conduct of the upper owner but also to improvements by the lower owner, such as the construction of dams designed to protect against the natural flow of surface waters across the lower land. Regardless of whether a counterclaim has been filed when both parties have made improvements, the reasonableness of the conduct of each will be in issue and may be compared in order to arrive at a fair determination.

Coachwood Colony MHP, LLC, supra, quoting Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So.2d 959, 963 (Fla. 1989). 

In Coachwood Colony, the lower landowner sued its neighboring upper landowner for damages and permanent injunctive relief arguing that the stormwater runoff from the upper landowner “adversely affected its property due to increased water flow, constituted a continuing nuisance, and interfered with the use and enjoyment of its property.”  Under the reasonable use rule, the reasonableness of BOTH parties’ conduct comes into play.  This would include the lower landowner’s reasonable attempts to control the stormwater runoff in addition to the upper landowner’s use of its property, specifically with respect to stormwater diversion.  Hence, if there is a controversy between landowners of different elevations regarding stormwater runoff, the reasonable use rule will apply.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Disgorgement for WRONGDOING

Posted by David Adelstein on January 27, 2019
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What is disgorgement and what are the proper measure of damages when seeking disgorgement?  If you have ever asked yourself these questions, the case of Bailey v. St. Louis, 44 Fla.L.Weekly D128a (Fla. 2d DCA 2019), answers both in a bitter dispute with two appeals dealing with awarded damages associated with claims for breach of fiduciary duty, defamation, conspiracy, slander per se, tortious interference, and violation of Florida’s Deceptive and Unfair Trade Practices Act.  You name it, this case seemed to include it!  Applicable here, however, is the damages associated with disgorgement which is designed to prevent a wrongdoer from profiting from his/her/its own wrongdoing or illicit conduct. 

In the first appeal, the appellate could held that the trial court’s award of disgorgement damages to the plaintiff was inadequate.   On remand, the trial court entered the same award mistakenly believing the appellate court thought that the damages were inadequately explained as opposed to just inadequate.  The trial court tried to explain the damages it found for disgorgement focusing on the plaintiff’s lack of business skills (or unsophistication) as a means to limit the disgorgement damages.  But, this was wrong as best explained by the appellate court in a subsequent appeal discussing disgorgement (including the citations that help explain the purpose of disgorgement and corresponding damages):

The trial court’s focus on the appellants’ supposed lack of business skills as a basis to limit disgorgement shows a complete misapprehension of the principles applicable to disgorgement. Disgorgement is a remedy designed to deter wrongdoers by making it unprofitable to engage in the wrongful behaviorSee Duty Free World, Inc. v. Miami Perfume Junction, Inc., 253 So. 3d 689, 698 (Fla. 3d DCA 2018) (“‘Disgorgement is an equitable remedy intended to prevent unjust enrichment.’ ” (quoting S.E.C. v. Monterosso, 757 F. 3d 1326, 1337 (11th Cir. 2014))); Restatement (Third) of Restitution and Unjust Enrichment § 1 (Am. Law Inst. 2011) (“A person who is unjustly enriched at the expense of another is subject to liability in restitution.”); Restatement (Third) of Restitution and Unjust Enrichment § 3 (“A person is not permitted to profit by his own wrong.”). The point of disgorgement is to deter wrongdoers by stripping them of the gains from their conduct:

Restitution requires full disgorgement of profit by a conscious wrongdoer, not just because of the moral judgment implicit in the rule of this section, but because any lesser liability would provide an inadequate incentive to lawful behavior. If A anticipates (accurately) that unauthorized interference with B’s entitlement may yield profits exceeding any damages B could prove, A has a dangerous incentive to take without asking — since the nonconsensual transaction promises to be more profitable than the forgone negotiation with B. The objective of that part of the law of restitution summarized by the rule of § 3 is to frustrate any such calculation.

Id. § 3 cmt. c; see also § 51 cmt. e (“The object of the disgorgement remedy — to eliminate the possibility of profit from conscious wrongdoing — is one of the cornerstones of the law of restitution and unjust enrichment.”).

***

However, the measure of damages for disgorgement is not the profits the appellants might have made absent the wrongdoing — the measure of damages for conscious wrongdoing is the appellees’ “net profit attributable to the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(4); see also Duty Free, 253 So. 3d at 698 (“The equitable remedy of disgorgement is measured by the defendant’s ill-gotten profits or gains rather than the plaintiff’s losses.”). “When the defendant has acted in conscious disregard of the claimant’s rights, the whole of the resulting gain is treated as unjust enrichment, even though the defendant’s gain may exceed” the claimant’s loss.” Restatement (Third) of Restitution and Unjust Enrichment § 3 cmt. c. In fact, disgorgement may be awarded even if the claimant has not sustained any loss. Restatement (Third) of Restitution and Unjust Enrichment § 3, reporter’s note a. (“[I]t is clear not only that there can be restitution of wrongful gain exceeding the plaintiff’s loss, but that there can be restitution of wrongful gain in cases where the plaintiff has suffered an interference with protected interests but no measurable loss whatsoever.”).The trial court’s comments regarding the appellant’s business acumen are misplaced in determining a disgorgement award.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Disability Discrimination: Synopsis

Posted by David Adelstein on January 20, 2019
Trial Perspectives / Comments Off on Disability Discrimination: Synopsis

When it comes to disability discrimination, there are two key federal statutes.  The first is the American with Disabilities Act (ADA) and the second is the Rehabilitation Act.  Both statutes are governed under analogous standards and are designed at prohibiting discrimination against qualified individuals with disabilities.  There are numerous federal cases discussing both the ADA and the Rehabilitation Act and their application to a given factual scenario.  For purposes here, this synopsis will merely highlight key components to a disability discrimination claim.  It is important that a person that believes they have been discriminated against because of a disability to consult with counsel to ensure they understand their rights. 

To prove a claim for disability discrimination, a plaintiff must prove the following three elements: 1) he/she is disabled; 2) he/she is a qualified individual; and 3) he/she was subjected to unlawful discrimination because of his/her disability. 

There is no disability discrimination claim without a plaintiff proving each of these three elements.

 

First Element.  A person is disabled if he/she has “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”  See ADA and Rehabilitation Act.  “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”  Id

 

Second Element.  A person is a qualified individual with a disability if they “with or without reasonable modifications to rules, policies, or practices…meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”  See ADA and Rehabilitation Act.  

 

Third Element.  To prove unlawful discrimination, a plaintiff can either establish disparate treatment or failure to provide reasonable accommodations. 

Disparate treatment requires the plaintiff to prove animus such that they were singled out / discriminated against because of their disability (and people without a disability were treated differently).   In this instance, a defendant can counter this by establishing they had a legitimate reason for its action in which the burden will shift back to the plaintiff to argue that the plaintiff’s so-called legitimate reason is nothing but a pretext for disability discrimination.

A failure to provide reasonable accommodations requires the plaintiff to request reasonable accommodations that would allow them to perform essential functions of the job.  A defendant can counter this by arguing they denied the requested accommodation because it posed an undue hardship, i.e., it was not a reasonable accommodation.    

Both the ADA and the Rehabilitation Act contain an anti-retaliatory framework. So, let’s assume a person requests accommodations and those accommodations were denied and then that person was dismissed from their employment or educational status.  In this instance, the person may argue the defendant violated the ADA and the Rehabilitation Act by failing to provide them a reasonable accommodation.  The person may further argue that they were retaliated against by the defendant through their dismissal.  Similar to the above regarding disparate treatment, the defendant can rebut this by arguing they had a legitimate reason for plaintiff’s dismissal (that had nothing to do with the disability) in which the burden shifts back to the plaintiff to establish that the defendant’s proffered reason is a pretext for disability discrimination.

 

As mentioned above, there is a lot to disability discrimination claims and it is imperative a person that believes they have been discriminated against because of their disability consult with counsel to understand the nuances of the law and the application of the law to their specific factual claims.  This is just a synopsis relative to the framework of a disability discrimination claim.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Arbitration Clause – Narrow or Broad

Posted by David Adelstein on December 22, 2018
Trial Perspectives, Uncategorized / Comments Off on Arbitration Clause – Narrow or Broad

Arbitration, as a method of dispute resolution, is a creature of contract.  If you prefer to arbitrate disputes as opposed to litigating disputes in court, then you want a properly drafted arbitration provision in your contract.  If you want all disputes arising out of or relating to your contract to be arbitrated, then you want this specified in your contractual arbitration provision.  Conversely, if you want certain disputes not to be arbitrated or carved-out from arbitration, you want to clarify this in the arbitration provision.  The more clarity, the better, as it will avoid an issue down the road as to whether the dispute at-issue is subject to the arbitration provision.

Arbitration being a creature of contract was discussed in Vancore Construction, Inc. v. Osborn,43 Fla.L.Weekly D2769b (Fla. 5thDCA 2018) (internal citations omitted), which dealt with a contract between a purchaser and a homebuilder. This case, in particular, discussed the difference between a narrow arbitration provision and a broad arbitration provision. It is good practice to understand the difference, specifically if you negotiate or enter into contracts that contain an arbitration provision. As stated by the Vancore Construction Court:

Because arbitration provisions are contractual in nature, they are subject to the rules of contract interpretation.  The determination whether a dispute must be arbitrated “turns on the parties’ intent,” which is manifested in the plain language of the contract itself.  In general, courts favor arbitration provisions and “will try to resolve an ambiguity in an arbitration provision in favor of arbitration.”  Thus, if the language of the arbitration provision is sufficiently broad, courts will apply a liberal construction and require arbitration. 

Two types of arbitration provisions have emerged — those that are narrow in scope and those that are broad in scope.  Narrow arbitration provisions generally require arbitration for claims or controversies “arising out of” the subject contract, whereas arbitration provisions that are broad in scope usually require arbitration for claims or controversies “arising out of or relating to” the subject contract. When a contract contains a narrow arbitration provision, arbitration is only required when a litigant’s claims have a direct relationshipwith the terms and provisions contained in the contract.  In contrast, when a contract contains a broad arbitration provision, the court will compel arbitration when the party’s claims have a “significant relationship” to the contract.  The test to determine whether a “significant relationship” exists has been described as follows:

A “significant relationship” between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a “contractual nexus” between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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