FL Sup. Ct. Rule Changes Affect All Florida Attorneys

July 10, 2012

The Florida Supreme Court recently issued an opinion which makes MAJOR changes to the way pleadings and papers are served.  You need to familiarize yourself and your staff with these changes ASAP since the rules will take effect as of September 1st for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases.  The provisions in the rules are mandatory. 

The short version is that ALL pleadings and papers must be served via email. This opinion significantly changes the way pleadings are served in Florida state court cases.

The opinion is 208 pages long, so this blog post is not intended to serve as an exhaustive list of all of the changes. However, I will start with two quick quotes from the opinion regarding implementation of these changes.

 First, e-mail service will be mandatory for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, when the rule amendments take effect on September 1, 2012.

 Second, when the rules take effect on September 1, attorneys practicing in the criminal, traffic, and juvenile divisions [footnote omitted] of the trial court may voluntarily choose to serve documents by e-mail under the new procedures, or they may continue to operate under the existing rules. E-mail service will be mandatory for attorneys practicing in these divisions on October 1, 2013, at 12:01 a.m. (the date on which electronic filing will be mandatory in these divisions).

Those quotes probably got your attention. If so, read on. 

This blog post summarizes some of the changes by quoting the significant amendment provisions, but you really need to read the opinion to understand the full impact of all of the changes.

The main change is that the Florida Supreme Court created a new Florida Rule of Judicial Administration 2.516 - Service of Pleadings and Papers which will control service of pleadings and papers (after the initial pleading) in various judicial divisions. This rule was modeled after current Florida Rule of Civil Procedure 1.080 "Service of Pleadings and Papers" and includes many of the same provisions and requirements for service.

However, new rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) "Service by Electronic Mail 'e-mail'”, upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail. The rule does permit several limited exceptions to this requirement. A lawyer may file a motion to be excused from e-mail service, demonstrating that he or she has no e-mail account and lacks access to the Internet at the lawyer’s office.Similarly, individuals who are not represented by an attorney may designate an e-mail address for service if they wish; however, pro se litigants are not required to use e-mail service. Additionally, applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice are not required to comply with rule 2.516.

Subdivision (b)(1) also includes provisions addressing the time and format for e-mail service. Service by e-mail is deemed complete when the e-mail is sent. Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the relevant proceeding. The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line. 

As noted, the other subdivisions in rule 2.516 closely track the language in rule 1.080, modified to reflect the move to e-mail service. Subdivision (c) "Service; Numerous Defendants" describes procedures for service when the parties are “unusually numerous”; subdivision (d) "Filing" requires that all original documents must be filed with the court either before service on the opposing party or immediately thereafter; and subdivision (e) "Filing Defined" states that documents are deemed “filed” when they are filed with the clerk of court. Subdivisions (g) "Service by Clerk" and (h) "Service of Orders" address service of notices or other such documents by the clerk, and service of orders or judgments entered by the court, respectively. These subdivisions authorize, but do not require, the clerks and the courts to utilize e-mail service if they are equipped to do so.  

In addition to new rule 2.516, the Court also amended the rules of procedure to delete existing provisions in the rules describing service, and add new language referencing rule 2.516.

There’s also a change to Rule 2.515 of the Rules of Judicial Administration to provide that the signature blocks on pleadings must now also include a primary email address and an optional second email address.

These rules will be in effect before you know it and thus, if you have not already done so, its time to train staff on these new requirements, be prepared to revise pleading forms to reflect the new signature block and “certificate of service” requirements, implement new procedures for service in accordance with rules, and file notices of email addresses in all pending cases.

Good luck in meeting these new requirements. A copy of the Florida Supreme Court's decision can be found here => http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf. If you are interested in contacting me, you may do so at miamipandi@comcast.net or mov@chaloslaw.com.  

Jury Finds Overwork of Crew Recoverable Under Jones Act

July 08, 2012

In Skye v. Maersk Line, 11-21589-CIV-ALTONAGA, a Miami federal court jury decided that extreme, compulsory overwork of a ship's crew member impaired his physical health and amounted to a shipboard condition for which the Jones Act is applicable.

On May 16, the case resulted in a significant jury award against a worldwide cargo shipping company. Although the $2.36 million award was reduced to $590,000 because of comparative negligence, this case of first impression may minimize the distinction between physical and nonphysical injuries established by Consolidated Rail Corp. v. Gottshall , 512 U.S. 532 (1994).

In Gottshall, the plaintiff, a Conrail employee, watched a fellow worker die of a heart attack while on duty. Gottshall's boss put off seeking medical treatment when the worker was stricken, kept the crew working and left the body at the work site for the rest of the day. Shortly thereafter, Gottshall entered a psychiatric facility. He sued Conrail under the Federal Employers' Liability Act ("FELA"), claiming the distress that Conrail's managers put him through caused his illness. Jones Act cases follow the case law interpretations under FELA.

The trial court dismissed the case. However, the U.S. Court of Appeals for the Third Circuit reversed, finding Gottshall's injuries were "genuine and severe" and could be pursued under FELA's liberal policy for on-the-job injury. The U.S. Supreme Court took a different view. Rejecting the Third Circuit's application of FELA, Justice Clarence Thomas wrote for a 7-2 court majority that adopted from common law the "zone of danger" test. This test limits relief to employees who are physically injured as the result of emotional stress caused by employer negligence.

In this recent case, William Skye, a chief mate aboard cargo vessels operated by Maersk Lines, had to retire 10 years early after he developed left ventricular hypertrophy. This condition makes it difficult for the heart to pump blood and sharply increases the risk of a heart attack. Skye alleged and proved that his cardiac problem resulted from intentionally being overworked by Maersk, to the point where he slept fewer than six hours a night for four years, and had shifts of almost 16 hours.

Skye sued under the Jones Act, which was enacted to provide a remedy to seamen injured in the course of their duties. The Jones Act gives crew members a remedy for intentionally or negligently caused injuries as well as injuries caused by a vessel's unseaworthy condition. It is the seamen's equivalent of FELA for railway employees, and courts have consistently held that case law under each statute is applicable to the other.

In Skye, Maersk Lines sought summary judgment based in part on the Gottshall distinction between physical and nonphysical injuries. U.S. District Judge Cecilia Altonaga let the case go to the jury. She refused to conclude as a matter of law that Gottshall was dispositive. The judge acknowledged the jury could decide injuries such as heart attacks may result from nonphysical stress and fall within the Gottshall rule.

Altonaga found that the evidence in Skye created a genuine issue of material fact. In testimony, Skye's cardiologist tied his patient's physical ailment directly to his working conditions. According to the plaintiff's case, extreme and persistent sleep deprivation, such as the deprivation Skye suffered, can amount to a physical condition; it is not a mere emotional stresser.

Apparently, the jury was satisfied by the proof that a direct causal relationship existed between Skye's overexertion and his cardiac condition. The jury found that Maersk was negligent and its negligence was the legal cause of Skye's injuries.

This case is currently being fought in post-trial motions. Regardless of what occurs inSkye post trial, it is expected that unless the parties are willing to settle for reasonable amounts, the case will be appealed as it is one potentially opening shipowner liability for physically damaging "overwork" of crewmembers and setting the stage for what the Daily Business Review reports in their article of June 14, 2012 as "discourag[ing] ship owners from the irresponsible practice of maximizing profits without regard for crew well-being even if it jeopardizes health." 

If you are interested in receiving a copy of the jury's verdict in Skye or you have any questions regarding this case,  please feel free to contact me to obtain a copy at either miamipandi@comcast.net or mov@chaloslaw.com.

Webinar on "Vessel Arrests and In Rem Proceedings in Admiralty Law"

June 13, 2012

I have presented a webinar for Lawline.com titled "Vessel Arrest and In Rem Proceedings in Admiralty Law." The course provides lawyers in most states CLE if you hear the entire presentation. You can hear the program, free of charge, by registering with Lawline.com by clicking on the following link:

http://bit.ly/yFbATR 

This seminar is geared towards vessel necessaries providers and in particular, small boat service providers, as it gives "real life" examples of cases I have handled and how the provider managed to get ahead in what initially appeared to be a hopeless case.

If you are interested in obtaining the complete materials, including the Powerpoint presentation and video, you will need to pay for the seminar on Lawline.com. I hope you enjoy the presentation and if you have any questions on any aspect of the presentation, please feel free to contact me at miamipandi@comcast.net or mov@chaloslaw.com. 

The Insurance Implications of the COSTA CONCORDIA

May 30, 2012

On May 2, 2012, during MLA week, I was asked by the joint committees of Marine Torts  and Casualties and Cruise Lines and Passenger Ships to speak as part of a panel on the COSTA CONCORDIA casualty. The thrust of my discussion was on the insurance ramifications of the event. In a nutshell, I discussed the breakdown of the insurance coverages for first party and third party insurances. Carnival, the parent company of the owner of the ship, Costa Crociere, reported to have insurance coverage for damage to the ship above a $30 million retention and third-party personal liability coverage above a $10 million retention. Claims are the casualty will cost $1 billion.

My ultimate conclusion in my presentation is that the casualty would not result in a hardening of the hull market and that the liability insurers were well placed to adequately deal with the matter.

Because I have received numerous requests to obtain a copy of my Power Point presentation, please let me know if you are interested in receiving a copy as well by emailing me at miamipandi@comcast.net or mov@chaloslaw.com.