FLORIDA FEDERAL CASES

  • Timely Removal to Federal Court – In order for a settlement offer or demand to trigger 28 U.S.C. §1446(b)'s removal time period, the offer or demand must contain an "honest assessment of damages" in order to serve as a basis for satisfying the amount-in controversy requirement. Section 1446(b)(3) provides in pertinent part: "notice of removal may be filed within 30 days after receipt by the defendant… of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. §1446(b)(3) (emphasis added).   In order for a settlement offer to trigger the 30 day time period, the settlement offer must contain an "honest assessment of damages."  Because the email in question was an invitation to enter into settlement and offered no basis for the figure, the settlement was a posturing strategy that did not satisfy the requirements for the email to serve as a basis for removal.  The Towers of Oceanview South Condo. Assoc. Inc. v. Great American Ins. Co. of New York, No. 14-61329-CIV, 2014 WL 4376147 (S.D. Fla. Sept. 4, 2014).

FLORIDA STATE CASES

  • Premature Proposal for Settlement – Proposal for settlement from recently added defendant served on plaintiff sixty days after the amended complaint was filed is premature and will not form the basis for an award of attorneys’ fees.  Fla. R. Civ. P. 1.442 provides the following pertinent timeframes: “A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced.”  Rule 1.442(b) (emphasis added).  Provisions of Section 768.79 and Rule 1.442 are strictly construed.  Thus, a proposal for settlement will be invalidated where it is served sixty days after the amended complaint was filed against a defendant. Design Home Remodeling Corp. v. Santana, 39 Fla. L. Weekly D1862a, Case No. 3D13-2852 (Fla. 3d DCA September 3, 2014).
  • Attorneys’ Fees – Trial court lacks jurisdiction to award attorneys’ fees to prevailing party incurred in defending certiorari proceedings where the appellate court had not authorized such award:  To pursue a claim for appellate attorney’s fees, attorneys must file a motion, pursuant to Rule 9.400(b), stating the legal basis for the claim.  Because the appellate courts generally have exclusive jurisdiction to award appellate attorney’s fees, a circuit court cannot award attorney’s fees for services in the appeal, even as a sanction.  Thus, the Second DCA reversed the trial court’s award of fees for time spent in responding to the petition for writ of certiorari.  Bartow HMA, LLC v. Kirkland, 39 Fla. L. Weekly D1866b, Case No. 2D13-3483 (Fla. 2d DCA September 3, 2014).
  • Homeowners Insurance Policy – Summary judgment inappropriate where issues of fact remained as to latent ambiguities in insurance policy: Insurance policy covered “sudden and accidental direct physical loss to property.” The policy contained an exclusion to that coverage from “seepage, meaning continuous or repeated seepage or leakage over a period of weeks, … from, within, or around any plumbing fixtures … for the use of water or steam.”  It was undisputed that large amounts of water flowed from a pipe while the insureds were on vacation; however, the contractual terms of “seepage” and “sudden” were latent ambiguities and the facts regarding the cause of the escaped water remained at issue.  Due to the latent ambiguities, there necessarily existed a disputed issued of material fact. Price v. Castle Key Indemnity Co., 39 Fla. L. Weekly D1864e, Case No. 2D13-1809 (Fla. 2d DCA September 3, 2014)