McCumber Daniels’ Tampa Office Relocates to Hoover Boulevard

McCumber Daniels announced today the relocation of its Tampa office to 204 South Hoover Boulevard, Suite 130, Tampa, Florida 33609.

The new office will accommodate the company’s current staff and enable further expansion for the firm’s future growth.

We've movedMcCumber Daniels offers a wide variety of litigation services for insurers, health care facilities, businesses, financial institutions and licensed professionals. The firm regularly handles cases involving Medical Malpractice Defense, Commercial Litigation, Bankruptcy and Creditors’ Rights, Insurance Coverage, General Liability, Professional Liability Defense, Appeals, Long-Term Care Defense, and Health Care Law (including ZPIC Reviews and Audit Appeals.) With years of legal, corporate, medical, commercial, administrative and legislative experience, we are able to provide full-service representation for all of our clients in all types of disputes or litigation.

For more information visit our website at www.mccumberdaniels.com. All email inquiries can be sent to info@mccumberdaniels.com.

Making a Record for Appeal

Author: Amy L. Miles

A crucial component of obtaining a judgment in the trial court is the ability to keep favorable judgments when the opposing party seeks an appeal or to overturn unfavorable judgments when the trial court has erred.  While a case is being litigated on the trial level, the focus is most often on just getting to the judgment.  A party and its attorney should be aware, however, that if an appeal must be taken, the appellate courts can consider only the arguments and facts on record in the trial court—and nothing more.  A party cannot go back and “fill in” missing facts or arguments for the appellate court.    Therefore, it is essential to ensure that every argument and fact needed to win your case is presented to the trial court—even when those arguments and facts do not seem to be what will convince the trial court to make its ruling.

The reality is that the same fantastic facts and arguments that may sway a jury—or even a trial judge—may not necessarily be the facts and arguments that will sustain your case through an appeal.  The best way to ensure long-term success in a case is to be familiar with the case law controlling the issues that are disputed in your case.  It is in the case law that a lawyer finds specific interpretations of controlling statutes and contract terms, discussions of specific facts that persuaded the court to rule as it did, and legal reasoning that can point to what must be shown in order to prevail.  Armed with this knowledge, a trial lawyer will be equipped to ask the right questions and get the answers needed to determine the case.  The trial lawyer will also be able to make the specific arguments, based on controlling cases, which will preserve the issues if needed for appellate court consideration.

McCumber Daniels’ appellate practitioners stay abreast of the case law as it is released from the appellate courts.  They are already familiar with controlling case law in many areas, so they are in a position to assist in ensuring that the facts necessary to prove the case and the arguments required to win are being discovered and presented at the trial level.  When novel issues arise, the appellate lawyers have the research experience and skills to quickly and efficiently determine what facts and arguments must be presented to prevail on those issues—or to propose new arguments, if necessary, that are well-grounded in established case law.

This preliminary footwork during the pre-trial and trial stages of a case ensures that the facts and arguments developed are solid and preserved.  It gives you a sound basis on which to make decisions about resolving the case and gives the trial court a solid foundation for its ruling.  Then, if it comes to an appeal, the research is largely done and the facts are well-established, reducing the usual delay and costs that accompany appellate review.  Further, the appellate court has everything in the record it needs to conduct a complete review of the case.  You can depend on our appellate department not only to handle appeals when they arise, but also to assist you and your trial counsel as you progress through the litigation process to accomplish the best results possible in the most efficient and cost-effective manner.

The Florida Supreme Court on Nursing Home Arbitration – Did they get it right?

Author: Mark B. Hartig

Arbitration agreements exist all around us. Virtually everyone who reads this is bound to one. You have them with your credit card holders, your auto lease company, with your bank and mortgage broker, and maybe even with your own treating doctor. In almost all of these cases, if a dispute arises and you want to sue, you are going to arbitration, no matter what.

That’s because the enforcement of arbitration agreements have become commonplace in state and federal courts throughout the country. It’s not controversial. It’s actually considered a “favored” form of dispute resolution. So much so, that that is written in to the Federal Arbitration Act, and mimicked in numerous state arbitration codes and court case decisions.

This is apparently not so when it comes to nursing homes. The Florida Supreme Court invalidated two arbitration agreements last week and in the process appeared to lash out at arbitration as a favored form of dispute resolution but only when it comes to nursing homes. The Court found that limitations in arbitration agreements on the amounts nursing home residents could collect if they were in court “violate public policy” and thus is illegal.
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Florida Supreme Court Invalidates Nursing Home Arbitration Agreements

Author: Amy L. Miles

In two separate opinions issued on Wednesday, November 23, 2011, the Florida Supreme Court held that arbitration agreements that place limits on remedies or procedures available to nursing home residents under sections 400.022 and 400.023, Florida Statutes (providing rights for nursing home residents), are void and unenforceable as a matter of law. The opinions, Shotts v. OP Winter Haven, case no. SC 08-1774, and Gessa v. Manor Care of Florida, Inc., case no. SC 09-768, reviewed the conflict between Florida’s Second District Court of Appeal and Florida’s First, Fourth, and Fifth District Courts. For over five years, the Second District Court has enforced arbitration agreements, holding that the question of whether a provision contained in an arbitration agreement was against public policy and therefore unenforceable was a question to be determined by the arbitrator, who could sever any provisions it found to be offensive of public policy. Three other district courts, however, have refused to enforce arbitration agreements containing provisions that those courts have deemed contrary to public policy, holding that it is the court that should determine whether the provisions violate public policy and, therefore, make the agreement unenforceable.

In Shotts, the arbitration agreement required use of the rules promulgated by the American Health Lawyers Association (AHLA) for arbitration—which included a “clear and convincing” standard of proof instead of the statutory “preponderance of the evidence” standard—and included a waiver of rights to claim punitive damages. In Gessa, the agreement capped the award of noneconomic damages to $250,000 and also included a waiver of rights to claim punitive damages. Unlike in Gessa, the Shotts agreement also included a severability clause that provided that if any provision of the agreement was found to be unenforceable, it could be severed from the agreement.

In both cases, the Supreme Court held that the Second District erred in determining that the arbitrator, not the court must decide whether the arbitration agreement is unenforceable based on a violation of public policy. The Court also held that the limitations the agreement placed on liability and the limited standard of proof under the AHLA rules violated public policy as a matter of law. “[A]ny arbitration agreement that substantially diminishes or circumvents these remedies [provided by the residents’ rights statutes] stands in violation of the public policy of the State of Florida and is unenforceable.” Shotts at p. 3. Finally, the Supreme Court held that the Shotts provision, requiring use of the AHLA rules, went to the “essence of the agreement” and could not be severed despite the severability provision in the arbitration agreement. Likewise, although the Gessa agreement had no severability provision, the Court opined that the liability limitations contained in that agreement would not have been severable because they were the “financial heart of the agreement.”

Are arbitration agreements between nursing homes and their residents now a thing of the past? The answer is no, however these Supreme Court decisions have declared void and unenforceable any agreements that contain liability or procedural provisions that limit nursing home residents’ rights contrary to sections 400.022 and 400.023. Therefore, many currently-existing arbitration agreements will be deemed void under these decisions. Further, these decisions require the courts—not the arbitrators—to determine whether other agreement provisions are contrary to public policy and, if so, whether those provisions go to the heart of the agreement making it void or whether they are severable and arbitration can proceed. Therefore, we may see residents or their representatives challenging other provisions, which have been overlooked while the courts focused on the limitations considered in these cases, in an attempt to force the courts into making additional public policy decisions.

McCumber Daniels Secures Two More Appellate Victories

Earlier this year in Jaylene v. Moots, 995 So.2d 566 (Fla. 2nd DCA 2009) McCumber Daniels attorneys Mark B. Hartig and Mara B. Levy, convinced the Second District Court of Appeals to reverse a trial court decision denying the enforcement of a nursing home’s arbitration agreement.  In Moots, the Second District ruled that a Power of Attorney does not need to specifically provide for the right to arbitrate disputes so long as the agreement grants the attorney in fact broad authority to handle the business affairs. On November 13, 2009, Mr. Hartig and Ms. Levy secured two more significant decisions from the Second District reversing the trial courts’ orders denying motions to compel arbitration.

In Jaylene, Inc. v. Steuer, the Second District rejected the trial court’s finding a nursing home resident’s power of attorney did not confer the authority to agree to arbitration on the resident’s behalf and the trial court’s finding that the arbitration agreement was void as against public policy. The power of attorney included provisions granting the authority to execute contracts as well as to institute, prosecute, defend, compromise or settle civil claims and litigation.  The Second District determined that this power of attorney was sufficiently broad to confer upon the attorney-in-fact the authority to bind the resident to the arbitration provision in the admissions contract.  With regard to the public policy issue, the Second District’s reaffirmed its decision in Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So. 2d 86 (Fla. 2d DCA 2005), that “[t]he arbitrator should in the first instance decide the validity of the remedial restrictions in the arbitration provision.”  Id. at 87.  Under Rollins, the trial court should have let the arbitrators decide any challenges based on public policy.

The second case, Candansk, LLC v. Estate of Hicks, dealt solely with whether the power of attorney granted the attorney-in-fact the authority to agree to waive a jury trial and have any dispute resolved by arbitration.  The Court concluded that the power of attorney executed by the resident was sufficiently broad to confer the authority to agree to arbitration because it referred to “claims and litigation.”  In reaching this conclusion, the Court rejected the plaintiff’s argument that a reference to “property” in the power of attorney somehow limited this broad grant of authority.  The Court first explained that the resident’s claim against the nursing home is the property of the Estate.  This is significant because in many cases, plaintiff attorneys, especially Wilkes and McHugh as in these cases, attempt to draw attention away from the provisions of a power of attorney that confer broad authority over contracts or claims and litigation by arguing that these provisions are limited to specific property interests.  In this case, the Second District made it clear that if a power of attorney includes provisions that are sufficient to confer the authority to agree to arbitration, the fact that the power of attorney refers to property elsewhere is not inconsistent with this broad grant of power. The Court also noted that the form power of attorney that the resident used in this case is typical of forms used throughout the country.  In the states that have statutes that provide for these forms, the inclusion of “claims and litigation” uniformly empowers the attorney-in-fact to submit to arbitration.

These two cases provide much needed guidance to litigants and the trial courts regarding the correct interpretation of powers of attorney and will significantly reduce plaintiffs’ ability to argue that the authority conferred under many standard powers of attorney is not broad enough to include the authority to agree to arbitration.

McCumber Daniels is a full service, Martindale-Hubbell AV-rated civil litigation firm with offices in Florida and Pennsylvania. McCumber Daniels offers a wide variety of litigation services for insurers, health care facilities, businesses and licensed professionals. With years of legal, corporate, medical, administrative and legislative experience, the firm provides full-service representation for all of our clients in all types of civil disputes or litigation.

The hiring of an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask us to send you free written information about our qualifications and experience.

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