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Posts Tagged ‘Florida’

When the Midas Touch Does Not Protect You From Your CLE Obligations

Posted on: March 15th, 2018

By: Jonathan M. Romvary

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As part of every attorney’s ongoing duty of competence, each jurisdiction requires attorneys to attend Continuing Learning Education classes each year. The failure to attain the minimum required credit hours for substantive and ethical topics may result in fines, suspension or worse. Multi-jurisdictional attorneys have a further obligation to remain in compliance with each of their jurisdiction’s varying CLE obligations.

Recently, the general counsel for TBC Corp., the parent company of car parts companies Midas and National Tire & Battery, got a two-year stayed suspension from the Board of Professional Conduct of the Supreme Court of Ohio for practicing out-of-state despite prior suspensions from the state for failing to comply with his CLE obligations. The decision arises out of charges that the general counsel engaged in unauthorized practice in Florida while under suspension in Ohio.

In 2009, Marciak was hired as general counsel for Florida-based TBC Retail Group and later promoted to senior vice president, general counsel and secretary of TBC Corp. As General counsel, Marciak oversaw a team of in-house attorneys managing litigation and was otherwise in a legal position requiring him to have a current license to practice. Despite his legal work in Florida, Marciak did not obtain a certification as an “authorized house counsel” until December of 2015.

Marciak’s problems began when a former employee of TBC filed a bar complaint with the State of Florida in 2015 alleging Marciak was being engaged in the unauthorized practice of law, resulting in disciplinary  action. The same employee thereafter filed a bar complaint with the State of Ohio alleging violation of their local rules, including the practice of law in another jurisdiction while suspended.

According to the court’s records, Marciak was suspended from the practice of law in Ohio in 2007 and sanctioned in 2009 and 2011 for failing to comply with his Ohio CLE credits. According to the Court Marciak failed to certify his compliance with Ohio’s biennial CLE compliance reporting for seven years. Further, Marciak only obtained the Florida certificate as authorized house counsel after the initial bar complaint was filed against him. Ultimately, the Ohio Supreme Court entered the two-year stayed suspension, saying that Marciak did not represent a future risk to the public and was attending and presenting at CLE classes. However the court warned that if Marciak failed to remain in full compliance, the stay would be immediately lifted and he would be required to serve the entire two-year suspension.

Despite receiving a stayed suspension, the lessons from Marciak’s natter is clear: every lawyer must familiarize themselves with the rules of the court and professional rules of conduct for the jurisdiction in which you practice and any other states in which you might practice law.

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

Unit Owners Denied Easement To Access Community Dock

Posted on: February 22nd, 2018

By: Michael G. Kouskoutis

In Goldman v. Lustig, a Florida townhome unit owner (Lustig) sought an injunction to prohibit neighboring unit owners from crossing his yard to access a dock located behind his unit.  The unit owners had rights to the dock pursuant to an assignment between Lustig and the Association, in which Lustig severed his riparian rights for the benefit of neighboring unit owners.  Lustig conceded that portions of the dock belonged to all unit owners and that the only means to access the shared dock was by a pier located in his backyard, yet still argued that unit owners had no right to enter his property.

The unit owners urged the court to recognize an implied easement by necessity, which grants an easement over another’s land “where there is no other reasonable and practicable way of egress, or ingress” to shared property.  In siding with Lustig, the court stated that “an easement by necessity requires a showing of an absolute necessity.”  The court reasoned that, since the unit owners live on waterfront property, “they can find an alternate means of accessing the dock, such as by constructing their own access pier, which would be a ‘reasonable and practicable way of egress, or ingress.’”

Community associations should be careful not to overlook issues of access when providing shared property, and should be mindful of the onerous burden courts may impose prior to granting implied easements.

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

Eleventh Circuit Rules Florida Strict Liability and Negligence Claims Not Preempted by the MDA

Posted on: February 12th, 2018

By: Robyn Flegal

A panel of the Eleventh Circuit determined in a February 8, 2018 published decision that a Florida district court erred when it ruled that a husband’s claims, brought against a medical device manufacturer after its Life Vest defibrillator failed to shock his wife’s heart, were preempted by federal law.

A defibrillator is worn by patients at risk of sudden cardiac arrest. It delivers a dose of electric current to the heart, depolarizing the heart muscle and ending dysrhythmia. The lower court dismissed the action in January 2017, ruling that the claims against the manufacturer were preempted by the Medical Device Amendment of the Food, Drug and Cosmetic Act. The FDA previously determined the Life Vest device was safe, and the district court agreed with the manufacturer that the allegations improperly contradicted the FDA’s prior approval of the product.

The Eleventh Circuit disagreed with the lower court’s ruling, deciding that the claims were not preempted. The court reasoned that the strict liability and negligence claims were not preempted by the federal regulations because the plaintiff alleged the defect was due to the manufacturer’s purported failure to comply with these regulations—which then caused a violation of Florida’s laws. The Court considered that a 2014 FDA warning letter put the manufacturer on notice that it was in violation of certain regulations. That letter can, now, serve as a basis for the plaintiff’s claims—even though the letter referred to shocks being delivered to patients who did not need them, as opposed to the failure to deliver shock to patients who needed them (as allegedly experienced by the plaintiff’s wife). The Court determined that the complaint’s references to the letter sufficiently stated a claim that was plausible on its face despite this disconnect between the warning letter and facts relating to the plaintiff’s wife’s use of the product.

Medical device manufacturers should be aware of the Eleventh Circuit’s ruling that claims of strict liability and negligence may not be preempted by the Medical Device Amendment. Such manufacturers should be particularly cognizant of this Eleventh Circuit decision where they have received an FDA warning letter.

For more information, please contact Robyn Flegal at [email protected].

Florida Appellate Court Invalidates Local Minimum Wage Law

Posted on: February 9th, 2018

By: Melissa A. Santalone

A recent decision by Florida’s Third District Court of Appeal invalidated Miami Beach’s local minimum wage law, holding that a state statute preempted the local ordinance.  In 2016, the City of Miami Beach enacted a local minimum wage hike, which would have gone into effect January 1 of this year and would have raised the local minimum wage to $10.31 per hour.  In City of Miami Beach v. Fla. Retail Federation, Inc., the Third DCA analyzed a the ordinance under both a state statute and an amendment to the Florida Constitution.    The state statute, Fla. Stat. § 218.077, enacted originally in 2003, provided, in relevant part, that “a political subdivision may not establish, mandate, or otherwise require an employer to pay a minimum wage other than a state or federal minimum wage.”  In 2004, Florida voters passed a constitutional amendment, brought by citizens’ initiative, that established a higher minimum wage across the state than that provided by the federal minimum wage law.  It also provided that the amendment “shall not be construed to preempt or otherwise limit the authority of the state legislature or  any other public body to adopt or enforce any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits.”  The Third DCA found that the constitutional amendment did not specifically nullify or limit § 218.077’s preemption provision, and therefore, Miami Beach’s local minimum wage ordinance was invalid.  The City of Miami Beach plans to appeal the decision to the Florida Supreme Court.

Florida employers should look out for the Supreme Court’s ultimate decision on this case, but for now, they can rest assured that there will be no enforceable local minimum wage laws enacted to adhere to in the interim.  Employers in other states disputing local minimum wage ordinances may want to seek advice on preemption statutes in their home venues in light of the approach taken by employer coalitions in Florida.

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

Driverless Motor Vehicle Lawsuit – The First of its Kind

Posted on: February 7th, 2018

By: Courtney K. Mazzio

General Motors is the first manufacturer to be hit with a driverless motor vehicle lawsuit. On December 7, motorcycle driver, Oscar Nilsson, alleges he was attempting to pass a self-automated Chevy Bolt on the right. The Bolt had indicated it was moving into the left hand lane, and according to Nilsson, when the coast was clear, he proceeded in his attempt to pass the Bolt. It was at that point the Bolt swerved back into Nilsson’s lane, knocking Nilsson over. Nilsson did walk to the side of the road, but was complaining of neck and shoulder injuries, which he allegedly treated for extensively and which required him to take disability leave from his job.

However, GM paints quite a different picture, detailing that the self-driving car attempted to merge into the left lane. However, the minivan ahead of it slowed down, and so the self-driving car abandoned the merge attempt. GM maintains it was as the self-driving car was attempting to center itself in the middle lane once again that Nilsson attempted to pass between the self-driving vehicle and a vehicle in the right lane. As he was attempting to make that pass, he hit the side of the self-driving vehicle. Notably, GM reported the self-driving car was keeping with traffic at its speed of 12 miles per hour while the motorcycle was traveling 17 miles per hour, which if proven, could be useful for them in mitigating liability They have also represented that the police report also maintains the company is at fault.

In the analysis swirling around driverless car technology and anticipated lawsuits sure to crop up, there is anticipation that car manufacturers will take the tack of either resolving swiftly when liability is poor or fighting tooth and nail when liability is questionable. The technology of the driverless vehicle no doubt affords car manufacturers the ability to be a bit more dichotomous. We will have to wait and see how this one pans out.

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