John Rando, Et Al. v. Government Employees Insurance Company (SC09-240)

SUMMARY: 7-0 Decision. The Court held that section 627.727, Florida Statutes, has specific requirements regarding what an insurance company must do to prevent paying uninsured motorist (UM) benefits on multiple policies for multiple vehicles held by one insured. One of these statutory requirements is that the insurance company must obtain informed consent from its insured when it will not allow "stacking" of UM benefits. Although GEICO's insurance policy had a provision that prevented "stacking" of UM benefits, GEICO did not follow the requirements of F.S. 627.727. Therefore, GEICO's provision that prevented "stacking" was unenforceable

Florida resident John Rando sustained permanent, life-altering injuries in a 2005 automobile accident. The accident occurred in Florida and was caused by an underinsured driver. At the time of the accident, John Rando and his wife Gail Rando were the named insureds on two motor vehicle insurance policies issued by GEICO. One policy, the Florida policy, covered two vehicles that were registered and principally garaged in Florida. The second policy, the Delaware policy, covered a vehicle that was registered and principally garaged in Delaware, where the Randos’ daughter resided. The Randos lived in Delaware until 2004, when they moved to Florida and established residency here. The Delaware policy was executed, issued and delivered in Florida. There was no express choice of law provision in the Delaware policy.

Each of the Randos’ motor vehicle policies provided uninsured motorist coverage, and the Randos paid premiums for coverage on each vehicle. Following the accident, the Randos were paid the full amount of uninsured motorist benefits under the Florida policy. However, they were denied benefits under the Delaware policy because of a provision that prohibited the combining, or stacking, of uninsured motorist benefits from separate GEICO motor vehicle policies. The anti-stacking provision in the Delaware policy stated: If separate policies with us are in effect for you or any person in your household, they may not be combined to increase the limit of our liability for a loss.

Because the Delaware policy was executed, issued, and delivered in Florida, it is the law of Florida that forms the basis for our interpretation of the parties’ rights and liabilities in this case. Florida’s public policy, as reflected in section 627.727, Florida Statutes, favors the providing of insurance coverage for losses caused by uninsured motorists. Uninsured motorist protection does not inure to a particular motor vehicle, but instead protects the named insured or insured members of his family against bodily injury inflicted by the negligence of any uninsured motorist under whatever conditions, locations, or circumstances any of such insureds happen to be in at the time.

In the event of a loss caused by an uninsured motorist, stacking allows an insured who pays separate premiums for uninsured motorist coverage to obtain benefits for each premium paid. Florida law with respect to the stacking of uninsured motorist coverage has evolved over the last four decades. At present, although Florida law prohibits the stacking of most forms of motor vehicle insurance coverage, uninsured motorist coverage is expressly excluded from this prohibition. See § 627.4132, Fla. Stat. (2009) (providing that the prohibition against stacking of motor vehicle insurance policies contained in that statute “does not apply . . . [t]o uninsured motorist coverage”). Therefore, the stacking of uninsured motorist coverage is permissible under Florida law.

The stacking limitation in subsection (9)(a), which provides that insurers may issue a policy stating that “[t]he coverage provided as to two or more motor vehicles shall not be added together to determine the limit of insurance coverage available to an injured person for any one accident,” is akin to the anti-stacking provision contained in the Randos’ Delaware policy. However, section 627.727(9) also places limitations on how an insurer may restrict uninsured motorist coverage. Thus, while section 627.727(9) provides insurers with a mechanism to provide less coverage to an insured, it also protects the insured by requiring that the insurer obtain informed consent from the insured. Using a form approved by the Office of Insurance Regulation (OIR), the insurer shall inform the named insured of the limitations authorized by section 627.727(9), and advise the insured that the offer is an alternative to a policy without those limitations. The insured’s signature on the OIR-approved form establishes an informed and knowing acceptance of the limitations. Additionally, the statute requires the insurer to file revised rates that reflect a minimum of a twenty percent decrease in rates as a result of the limited coverage.

It is this requirement that we conclude dictates the outcome in this case. GEICO concedes that it did not obtain informed consent from the Randos for the anti-stacking provision. Consequently, the anti-stacking provision is unenforceable under Florida law because GEICO did not satisfy the informed consent requirement.

Marshall Lee Gore v. State of Florida (SC07-678)

SUMMARY: 7-0 Decision. Defendant, Marshall Lee Gore, is currently on death row following a conviction for first degree murder. Pursuant to Fla. R. Crim. P. 3.853, Mr. Gore filed a pro se motion to demand DNA testing of numerous items found at the crime scene. Because Mr. Gore did not explain how the DNA results of these items would actually exonerate him, the trial court denied his motion. The appeal went directly to the Supreme Court of Florida. The Court affirmed.

The clear requirement of the provisions of section 3.853 is that a movant, in pleading the requirements of rule 3.853, must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.

This Court has previously explained that it is the defendant‘s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant‘s sentence. The burden is on the movant to demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case. This Court has rejected claims where the defendant was merely speculating and has repeatedly cautioned that Rule 3.853 is not intended to be a fishing expedition.Gore has not met his burden and, accordingly, we affirm the trial court‘s denial of DNA testing on the items collected during the investigation of this case.

Commentary: This case appears to involve a frivolous pro se motion from an inmate who has been on death row for nearly 20 years.

Inquiry Concerning A Judge, Nos. 08-392 and 08-360 Re: Angela Dempsey (SC09-1747)

SUMMARY: 7-0 decision. The Court responded to a complaint brought by the JQC against 2nd Circuit Judge Angela Dempsey for misrepresentations made by her campaign during her election. Judge Dempsey admitted the misconduct and took responsibility for the activities of those working for her campaign. The Court followed the JQC's recommendation of a public reprimand.

The case at bar arises from formal charges brought by the Judicial Qualifications Commission (JQC) against Judge Angela Dempsey. Pursuant to Canon 7A(3)(b) of the Code of Judicial Conduct, Judge Dempsey is responsible for the conduct of her political consultant. In the Notice of Formal Charges, the JQC accuses Judge Dempsey of engaging in improper conduct in violation of Canon 7A(3)(d)(ii) of the Code of Judicial Conduct1 during her 2008 campaign for the Circuit Court judgeship in the Second Judicial Circuit which she now holds. The JQC‟s Notice of Formal Charges states in pertinent part:

1. During the campaign, an advertisement appeared on YouTube entitled “re-elect” Judge Dempsey when you had not previously been elected to the circuit court but instead had been appointed to the bench in 2005, in violation of Canon 7(A)(3)(d)(ii) of the Code of Judicial Conduct.

2. During the campaign, one of your mailers represented to the voting public that you had 20 years of legal experience when in fact you were not admitted to practice law until 1994, in violation of Canon 7A(3)(d)(ii) of the Code of Judicial Conduct.

These Acts, if they occurred as alleged, would impair the confidence of the citizens of this state in the integrity of the judicial system and in you as a judge, would constitute a violation of the cited Canon of the Code of Judicial Conduct, and would warrant discipline, including but not limited to your removal from office and/or any other appropriate discipline recommended by the Florida Judicial Qualifications Commission.

On January 29, 2009, Judge Dempsey testified under oath and admitted to the alleged conduct at a hearing before the investigative panel. Subsequently, Judge Dempsey entered into a factual stipulation with the JQC admitting the charges, waived her right to a plenary hearing before the hearing panel of the JQC, apologized for her improper conduct, and accepted the public reprimand as recommended by the panel. Thereafter, the JQC panel made its findings and recommendations of discipline, in which it stated:

1. On January 29, 2009, the Investigative Panel of the Judicial Qualifications Commission served a Notice of Investigation on Circuit Court Judge Angela Dempsey (“Judge Dempsey”) pursuant to Rule 6(b), Judicial Qualification Commission. The investigation is based on information received regarding Judge Dempsey‟s conduct during her 2008 campaign for the Circuit Court Judgeship in the Second Judicial Circuit which she now holds.

2. The Investigative Panel has now entered into a Stipulation with Judge Dempsey in which she admits to the conduct set forth in paragraph 5 of the Stipulation.

3. Judge Dempsey has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. The Investigative Panel has concluded and therefore finds and recommends that the interests of justice, the public welfare and sound judicial administration will be served by a public reprimand of Judge Dempsey.

The Court concluded that there was clear and convincing evidence in support of the JQC's findings of fact as to both charges. The Court commanded Judge Dempsey to appear before it for the administration of a public reprimand at a time to be established by the Clerk of Court.

In Re: Amendments To The Florida Rules For Certified And Court-Appointed Mediators (SC09-1384)

SUMMARY: 7-0 decision. The Court adopted the Committee's proposed rule change but amended some of the Committee's recommended commentary. The rule places additional advertising restrictions on certified and court-appointed mediators. The rule limits, inter alia, the way former judges market themselves as mediators.

In order to reflect the expanded content of rule 10.610, the title is changed from “Advertising” to “Marketing Practices.” The rule itself, as amended, includes six new subdivisions. Subdivision (a) incorporates text from the current rule with only minor revisions. This subdivision generally precludes the use of any false or misleading marketing practices. Subdivision (b) prohibits a mediator from engaging in any marketing practice that identifies the mediator as “Supreme Court Certified,” unless such practice also identifies one or more specific areas in which the mediator is certified. Similarly, under subdivision (c), mediators are prohibited from engaging in a marketing practice that advertises the mediator as “certified,” unless the mediator obtained such certification through successful completion of an established certification process and the advertisement clearly identifies the entity issuing the certification. Subdivision (d) provides that advertising or marketing materials will be deemed “misleading” if the mediator states or implies that prior adjudicative experience makes one a better or more-qualified mediator. Subdivision (e), like subdivision (a), incorporates language taken without change from the existing rule. It states that mediators shall be prohibited from engaging in marketing practices that promise clients specific results or outcomes. Finally, subdivision (f) precludes a mediator from engaging in any other marketing practice that “diminishes the importance of a party’s right to self-determination or the impartiality of the mediator, or that demeans the dignity of the mediation process or the judicial system.”

The Court added this commentary: The roles of a mediator and an adjudicator are fundamentally distinct. The integrity of the judicial system may be impugned when the prestige of the judicial office is used for commercial purposes. When engaging in any mediation marketing practice, a former adjudicative officer should not lend the prestige of the judicial office to advance private interests in a manner inconsistent with this rule. For example, the depiction of a mediator in judicial robes or use of the word “judge” with or without modifiers to the mediator’s name would be inappropriate. However, an accurate representation of the mediator’s judicial experience would not be inappropriate.

Vanessa Van Vorgue v. Mara M. Rankin (SC08-2255)

SUMMARY: 7-0 decision. The Court reversed the 3rd DCA's order of disbursement of escrow funds under injunctive relief principles when there was a clear escrow agreement between the parties. Furthermore, the trial court's refusal to disburse escrow funds to one of the parties was not an injunction because it was not restricting the use of funds (the disputed funds were already restricted pursuant to an independent escrow agreement between the parties).

It is entirely settled by a long and unbroken line of Florida cases that in an action at law for money damages, there is simply no judicial authority for an order requiring the deposit of the amount in controversy into the registry of the court or indeed for any restraint upon the use of a defendant’s unrestricted assets prior to the entry of judgment. In contrast, the trial court’s order denying the release of funds in Rankin was not in the nature of an injunction because it did not restrict previously unrestricted funds.

Here, unlike in the three cases relied on by the Third District, the funds were restricted funds, already being held in escrow by a third party by agreement of the parties. Because the disputed funds were held pursuant to the terms of an escrow agreement created to facilitate a sale and protect the parties’ interests by holding the funds while disputes were pending, the Third District erred by relying on injunctive principles of law that apply when there are no such escrow agreements.

Attorney’s Title Insurance Fund, Inc., v. Joseph W. Gorka, Et Al. (SC08-1899)

SUMMARY: 4-3 decision. The Court resolved a conflict between the 2nd DCA and 1st DCA addressing the validity and enforceability of a joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offerees. That type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.

Before trial, Attorneys' Title served a proposal for settlement on the respondents pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442, which offered a payment of $12,500 to each party in full settlement of all claimed damages, attorneys' fees, and costs. However, the proposal stated: This offer is conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement. Subsequently, Attorneys‟ Title filed a motion to tax fees and costs against the respondents pursuant to the unaccepted proposal for settlement.

Section 768.79 generally creates a right to recover reasonable costs and attorney fees when a party has satisfied the terms of the statute and rule. It provides a sanction against a party who unreasonably rejects a settlement offer. In this case, the proposal for settlement was invalid and unenforceable because it was conditioned upon both of them accepting the amounts offered and specifies that neither of them may independently accept the amount offered. By so conditioning the proposal, neither Gorka nor Larson could independently settle his or her respective claim by accepting the proposal. If one wished to accept but the other elected not to accept, the acceptance would not be effective. In this scenario, the offeree who wished to accept would be exposed to the fee sanction under section 768.79 and rule 1.442 due to the conduct of the other offeree rather than as a result of his or her independent decision to reject the proposal.

Polston, Quince, and Canady dissented finding nothing in the statute or rule to prohibit this type of joint offer conditioned upon acceptance of all parties.

Blekley Coicou v. State Of Florida (SC04-637)

SUMMARY: 6-0 decision. The 3rd DCA was reversed for directing the trial court to enter a judgment of conviction on a "lesser included offense." The Court held that attempted second-degree murder is not a necessarily lesser-included offense of attempted first-degree felony murder because attempted second-degree murder contains an element, a depraved mind, that is not an element of attempted first-degree felony murder.

The jury convicted Coicou of attempted first-degree felony murder with a firearm. The jury specifically found that Coicou committed a robbery and used a firearm. On appeal, Coicou argued that the trial court fundamentally erred by convicting him of attempted felony murder because the State used the same act, the shooting of the victim, to prove both the attempted felony murder and the underlying felony offense.

The district court agreed that Coicou‟s conviction and sentence for attempted felony murder should be reversed. However, the court did not agree that Coicou should be discharged. The court held that under section 924.34, Florida Statutes (2001), Coicou‟s conviction should be reduced to a permissive lesser-included offense, attempted second-degree murder. The Third District remanded to the trial court with directions to enter a judgment of conviction for attempted second-degree murder.

Attempted second-degree murder is not a necessarily lesser-included offense of attempted first-degree felony murder because attempted second-degree murder contains an element, a depraved mind, that is not an element of attempted first-degree felony murder. Accordingly, pursuant to section 924.34, Florida Statutes (2001), it was improper for the Third District to remand to the trial court with directions to enter a judgment of conviction for attempted second-degree murder. The proper remedy is remand to the trial court for retrial on any lesser offenses contained in the charging instrument and instructed on at trial.