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FMG Law Blog Line

Posts Tagged ‘Eleventh Circuit’

Little Miller, Big Implications

Posted on: June 20th, 2018

By: Samantha Skolnick

In Georgia, when an individual performs work on a state construction project, they can file a lien for non-payment.  The lien is against the project through Georgia’s Little Miller Act. The claim itself is not against the state or county’s actual property. The claim is against a posted bond, and is a “Bond Claim” or “Little Miller Act Claim.”

In a recent decision by the Eleventh Circuit, the Court affirmed summary judgment for the surety based on Georgia’s one-year statute of limitations for little miller act claims. Strickland v. Arch Ins. Co., No. 17-106102018 WL 327443 (11th Cir. Jan. 9, 2018) (rehearing denied Apr. 4, 2018).

Strickland was tasked with providing sand to a paving company (“Douglas”) for the Georgia Department of Transportation (“GDOT”) as they worked on a road improvement project (the “Project”).  Arch Insurance Company (“Arch”) was the surety who issued payment and performance bonds for Douglas.  In 2007, GDOT declared Douglas in default and they were removed from the Project.  The surety brought in another company to complete the work on the Project. Strickland did not supply any sand after Douglas was removed from the Project.

GDOT determined that the Project was substantially complete in August of 2010 and in September 2010 made its punch list. The new contractor brought on by the surety finished the punch list in September 2011.  In March 2012, GDOT accepted Project maintenance responsibilities and made semi-final payment to Arch in July 2012.

In September 2012, Strickland directed a demand for payment on Arch’s payment bond.  Arch acknowledged the claim but requested additional documentation, which was not provided by Strickland.  In 2014, Strickland filed a lawsuit against Arch. The trial court concluded that there was no dispute that the project was completed and accepted in September 2011.  With that ruling, Georgia’s one-year statute of limitations on payment bond claims barred Strickland’s action and consequently Strickland appealed.

The Appellate Court rejected Strickland’s arguments, holding that “completion” and “acceptance” used in the statute relate to the actual work on the project and are not dependent on the ending of future contractual duties or on the public owner’s internal policies and procedures.

The main takeaway: under Georgia law, the date a public owner states that the project is “completed” or “accepted” does not dictate whether the statute of limitation is running.  Georgia’s one-year statute of limitations under Georgia’s Little Miller Act begins when the actual work is substantially completed. Punch list items do not need to be finished.

If you have any questions, please contact Samantha Skolnick at [email protected].

 

Fourteen Seconds Plus Emergency Lights Equals Probable Cause To Arrest

Posted on: June 11th, 2018

By: Charles Reed

There is a saying that “nothing good ever happens after midnight.” Both City of Hollywood, Florida police officer Ronald Cannella and citizen Livingston Manners would become very familiar with this saying after the events of June 24, 2014. On that day, close to three in the morning, Officer Cannella patrolled a residential area of the city due to a series of recent thefts. Manners, a Hollywood resident, was sitting in his car on the side of the road before heading to work and, shortly after Cannella passed by him on patrol, Manners pulled out and made a turn. What happened after that is largely in dispute, but what is undisputed is that Cannella approached Manners’ vehicle with emergency equipment activated. Manners saw Cannella behind him with lights and siren activated and, instead of stopping his car, Manners drove another fourteen seconds – approximately one tenth of a mile – at a slow speed to reach a well-lit gas station where video surveillance was available. Manners testified that he did not immediately stop his vehicle because it was late at night in a very dark area and, as a large African-American male, he was in fear for his life. However, Manners’ actions captured by videotape thereafter appeared to contradict his purported fear as he argued with Cannella and actively grappled with Cannella as Cannella attempted to arrest him. It took five officers and two taser deployments over a period of three minutes to get Manners in handcuffs.

After Manners was acquitted of the criminal charges stemming from the incident, he sued Cannella and others. On the issue of probable cause, the Eleventh Circuit held in Manners v. Cannella, 2018 U.S. App. Lexis 15007 (June 4, 2018) that Cannella had probable cause to arrest Manners for fleeing or attempting to elude a law enforcement officer by driving “for three blocks, or one-tenth of a mile, or for 14.4 seconds after seeing Officer Cannella was behind him with the patrol car’s lights and sirens on.” Id. at *19. This probable cause was present even though Manners rolled down his windows and drove a slower rate of speed (25 miles per hour) before pulling over to the gas station. The Court analogized Manners’ conduct with previous Florida cases involving a ten mile-per-hour drive for five minutes and a one to two-mile drive after lights and sirens were present. Id. at 21-22. The Court shrugged off Manners’ concerns for his safety by filtering his flight through the doctrine of necessity under state law and further held “a generalized fear of police does not provide a legal basis to vitiate probable cause for the offense of flight.” Id. at 23-24.

The Eleventh Circuit’s analysis of this issue reflects the tension between the law and instructions sometimes provided to the general public when approached by law enforcement late at night. In some instances, especially where the citizen is approached by a person impersonating an officer, news reports will quote senior command staff recommending that citizens call 9-1-1 or travel to well-lit areas late at night if they are uncomfortable with emergency lights behind them.[1] On the other hand, should citizens follow these instructions, they risk arrest and prosecution for flight even if – as in this case – the duration of the travel is a tenth of a mile. For now, at least in the Eleventh Circuit, it appears that law enforcement officers may be justified in effecting an arrest in such situations and may not face civil liability for the exercise of their arrest powers.

If you have any questions or would like more information, please contact Charles Reed at [email protected].

[1] A snapshot of various news articles around the country concerning late night stops between citizens and law enforcement: Chicago Tribune, News4JAX, and South Miami.

A House of Cards: Stacking Inferences to Prove Liability

Posted on: May 10th, 2018

By: Melissa Santalone

A Florida appellate court recently reaffirmed Florida’s state law prohibition against stacking inferences in personal injury cases with a reversal of a $1.5 million verdict in a slip-and-fall case against Publix.  In Publix Super Markets, Inc. v. Bellaiche, 2018 Fla. App. LEXIS 4233 (March 28, 2018), the Third District Court of Appeal reversed a trial court’s denial of a directed verdict to Publix at the trial of a case involving slip-and-fall accident at a Miami-Dade County store, holding that proof of liability via the stacking of inferences is impermissible, in contrast to federal case law.

The plaintiff in the case, a 70-year-old woman, alleged she slipped and fell on water in an aisle at a Publix store that she did not observe before the fall.  After she fell, she testified she saw a Publix employee holding a mop nearby, but no evidence was offered that the mop was wet or that water from the mop ever made contact with the ground.  The manager of the store testified the employees at the store used dry rayon mops to clean the floors, and not pre-soaked cotton ones.  Video evidence also showed the only janitor on duty at the time, the only employee whose duty it was to mop the floors, was using a broom and dust pan just prior to the plaintiff’s fall.  The Third DCA noted in its decision that the plaintiff had the burden to prove that Publix either created the dangerous condition that caused her fall or had actual or constructive knowledge of it, an opportunity to correct it, and it failed to do so.  At trial, the plaintiff acknowledged she was not proceeding on a constructive knowledge theory, but on the theory that Publix created the dangerous condition or had actual knowledge of the water on the floor via its employee with the mop.  The jury sided with the plaintiff at trial and awarded her more than $1.5 million, and the trial court denied Publix’s motion for a directed verdict.  In Bellaiche, the Third DCA reversed the lower court’s denial of the motion for directed verdict.  The Third DCA held that “[a] jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability.  If the only way that a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’”

In other forums, however, the stacking or pyramiding of inferences is permissible, including in the courts of the Eleventh Circuit, the federal courts in Alabama, Georgia, and Florida.  In Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (1982), the Eleventh Circuit found that “[a]ccording to federal law there is no prohibition against pyramiding inferences; instead all inferences are permissible so long as they are reasonable.”  Moreover, in Daniels, the Eleventh Circuit further noted that a directed verdict is not required in instances where the jury may choose between allowable inferences including instances where the inference championed by the plaintiff is no more likely than other possible inferences.  The takeaway here is that litigants in personal injury cases must consider the inferences they or their opposition will ask a jury to draw and whether their chosen forum will allow the stacking of inferences to prove liability.  In some venues, like in Florida state courts, more concrete proof of liability is required.

If you have any questions or would like further information, please contact Melissa Santalone at [email protected].

Circuits Now Split Three Ways Over False Claims Act Limitations Period

Posted on: April 26th, 2018

By: Robyn Flegal

The Eleventh Circuit Court of Appeals (governing Georgia, Alabama, and Florida), recently held that the three-year statute of limitations for the False Claims Act (FCA) begins when the government learns of alleged violations of the FCA, rather than when a whistleblower/relator learns of alleged violations.  As we previously explained in the FMGBlogLine, the FCA allows whistleblowers to bring claims for violations on behalf of the government in return for a share any recovery.  In United States of America ex rel. Billy Joe Hunt v. Cochise Consultancy, Inc. d/b/a The Parsons Corporation, a former employee alleged that certain contractors defrauded the Department of Defense out of millions of dollars for work performed pursuant to a wartime contract in Iraq.  According to the Complaint, an Army Corps of Engineer officer forged contract documents after accepting bribes and gifts.  The United States declined to intervene in the lawsuit.

The United States District Court for the Northern District of Alabama dismissed the suit on the basis that Billy Joe Hunt (the employee) was outside of the three-year limitations period for FCA claims.  FCA claims must be filed (1) within six years after the violation occurred, or (2) within three years of the time the appropriate government body is made aware of the violation and within ten years of when the fraud occurred.  The Eleventh Circuit determined that this second, three-year limitations period applies even where the United States declines to intervene in a qui tam action.  Indeed, although the employee knew of the fraud more than three years before he filed suit—his claim was timely because he filed the suit within three years of disclosing the underlying facts to the United States officials.  Simply put, in the Eleventh Circuit, the limitations period begins to run when the relevant federal government official learns of the facts; when the whistleblower learns of the fraud is simply immaterial to the statute of limitations.

There is now a three-way circuit split in the Federal Courts of Appeals regarding the tolling deadlines for FCA claims.  In contrast to the Eleventh Circuit’s holding above, the Fourth, Fifth, and Tenth Circuits have ruled that the three-year limitations period does not apply to whistleblowers at all.  The Third and Ninth Circuits have held that the three-year period begins when the whistleblower learns of the fraud.  As there is a split in the circuits, this particular action could be ripe for a decision by the Supreme Court if the defendants petition for a writ of certiorari.

As such, we will continue to monitor developments in this area.  For questions please contact Michael Bruyere at [email protected], Robyn Flegal at [email protected], or Ali Sabzevari at [email protected]