Reading the Tea Leaves: What Does the Future Hold for the 2003 Attorney's Fee Amendment? (Part IV)
(Cont'd from Part III)
As I said earlier, it’s anyone’s guess how the Florida Supreme Court will ultimately rule on the merits of Murray, but if previous 4-3 decisions from the Court where Chief Justice Lewis and Justices Anstead, Pariente, and Quince were in the majority are any guide, I think proponents of the amendment have reason to worry.
I base that conclusion on the fact that the views of these same four justices have carried the day against the views of the other three in these cases (in reverse chronological order):
- Florida Dept. of Corrections v. Abril, Case No. SC04-1747 (Fla. October 18, 2007)(holding 4-3 that Florida’s “impact rule” does not apply to bar a personal injury plaintiff’s claim for mental anguish where her employer violated its statutory duty to keep confidential the results of her HIV test).
- Willis v. Gami Golden Glades, LLC, Case No. SC04-1929 (Fla. October 18, 2007)(holding 4-3 that Florida’s “impact rule” is satisfied, thus permitting an award of damages for mental anguish, where the plaintiff in a personal injury case is physically touched but not injured in the incident).
- Bakerman v. The Bombay Co., Inc., 961So.2d 259 (Fla. 2007)(holding 4-3 that an employee need not show that his employer deliberately concealed a known danger to him in order to establish that the employer’s conduct was “substantially certain” to result in injury to the employee, thus avoiding the “exclusive remedy” provision of §440.11).
- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006)(holding 4-3 that an award of compensatory damages is not a prerequisite to an award of punitive damages).
- Dadeland Depot, Inc. v. St. Paul Fire and Marine Ins. Co., 945 So.2d 1216 (Fla. 2006)(holding 4-2 (Cantero recused), inter alia, that the obligee of a surety contract qualified as an “insured” who was therefore entitled to bring a bad faith action against the insurer for refusing to settle a claim in good faith).
- Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005)(holding 4-3 that a workers’ compensation claimant is not barred by the “exclusive remedy” provision of §440.11 from pursuing a tort claim against the workers’ compensation carrier where the carrier’s conduct amounted to intentional misconduct).
- State v. Campbell, 948 So.2d 725 (Fla. 2007)(agreeing 4-3 to discharge jurisdiction in a case where the Fourth DCA had found that a criminal defendant’s consent to search his vehicle was not voluntary).
- Breaux v. City of Miami Beach, 899 So.2d 1059 (Fla. 2005)(holding 4-3 that a municipality which operated a public beach from which it derived revenue had a duty to exercise reasonable care to those foreseeable users of the swimming area).
- Wilson v Salamon, 923 So.2d 363 (Fla. 2005)(holding 4-3 that a trial court may not dismiss an action for failure to prosecute where there has been any record activity in the case within the past year, even if that activity is merely passive).
- Berges v. Infinity Ins. Co., 896 So.2d 665 (Fla. 2004)(holding 4-3 that an insurer’s agreement to pay its policy limits within the time frames set forth in plaintiff’s demand letter for payment of the policy limits did not preclude a bad faith action against the insurer).
The decisions in all of these cases are either pro-plaintiff or pro-criminal defendant. Of the three dissenting justices in the Murray decision granting review, all but Justice Wells was appointed to the Court by Governor Bush, a Republican. The four justices in the majority were all appointed to the Court by Governor Chiles, a Democrat (Actually, Justice Quince was appointed to the Court jointly by the outgoing Governor Chiles and the incoming Governor Bush).
I’m not predicting here whether the Court will or will not find the amendment to be invalid, and obviously I’m not making a judgment about what the Court should decide. I’m just trying to read the tea leaves.
