Archive: March 2020

One of the main reasons that people create a legal entity for their business, such as a corporation or a limited liability company, is for liability protection. That is to say, such entities shield individual owners or directors from personal liability for actions taken by the business as a whole. An aggrieved party can therefore only seek monetary damages against the entity itself.

To strengthen this concept, American law has long recognized a principle known as the business judgment rule. This basically states that a judge (or jury) should not second-guess business decisions made by the directors or managers of a company, presuming they acted in good faith and within the scope of their legal authority. For example, a person cannot sue the individual members of a corporation’s board of directors simply because he disagrees with a business decision made by the board as a whole.

When you are in the process of going through a divorce you may receive a notice that your deposition will be taken by your spouse’s attorney. Lawyers take depositions in order to discover information, find out more about what a potential witness might say, and preserve testimony for trial. This can not only help them with evidence, but also potentially gather statements that can be used against your interest and credibility. It is very important that you work with your attorney and prepare for the divorce deposition, as preparation is key for these depositions. You never want to go in without knowing what to expect and having practiced.

Divorce depositions are usually around three hours long (although they depend on the specific circumstances of the divorce) and include your attorney, your spouse’s attorney, and the court reporter to record answers word-by-word. Your spouse may also be present, as well as any others that are relevant to the case; for example, a Guardian Ad Litem or child representative. Judges are not present and will not review the deposition transcript unless an attorney calls on them to do so.

One issue that has already come up in a number of contexts due to the coronavirus pandemic, including when it comes to business and landlord-tenant breach of contract claims, is the force majeure clause, or the provision in contracts which excuses non-performance of some contract obligations if certain unforeseeable events occur which makes fulfilling these obligations impossible (usually known as “acts of God”). Historically, these clauses have included earthquakes, floods, hurricanes, and sometimes also labor disputes, strikes, wars, etc.

However, some commercial tenants are now arguing that COVID-19 constitutes a “force majeure” event that makes fulfilling their rent obligations impossible, while many businesses have been and continue to argue that they cannot fulfill their contract obligations due to COVID-19 creating extraordinary and unforeseeable events.  These events and circumstances include workers unable to show up for work, having to close down facilities, states mandating social distancing, supply chains abroad shutting down, etc. There is no question that the courts will be filled with these disputes once that they are up and running again.

Battles over decorations between residents and homeowners’ associations is a common issue that both associations and property managers face on a regular basis here in Florida. This is one reason why you want to make sure that, as an association, you work with an experienced homeowners’ association attorney in creating association documents or amendments, as well as the appropriate covenants and restrictions, so that you are best able to manage these disputes and know what your rights beforehand – before they come up, or turn into expensive legal battles that can last decades.

Take a case that heads to trial in late February here in Florida after nine years of back-and-forth disputes between one unit owner and his homeowners’ association: The dispute involved the resident wanting to display an American flag in a flowerpot, which defied the homeowners’ association’s rules. After initially filing a federal lawsuit in 2012, his homeowners’ association settled and agreed that he could display the flag as long as his display complied with association rules. In exchange, he agreed to refrain from making disparaging statements about the association. However, one year later, the association began to assess a fee against him because of a new association rule about not allowing displays in flower pots, specifically. The resident once again filed a federal lawsuit against the association, and cited the Freedom to Display the American Flag Act of 2005. However, a federal judge dismissed his lawsuit because the law does not provide unit owners with the right to sue in federal court. Meanwhile, the association filed suit against the resident for making disparaging comments about it.

In February, a jury awarded one plaintiff almost $8.5 million verdict, which included eight million dollars in punitive damages, as a result of an insurance bad faith litigation claim brought against insurance company National General. The case is one that all insurance companies should be aware of in terms of what it means to thoroughly investigate a claim and whether or not a good faith dispute over coverage validly exists. It involved an insurance claim filed on a fire damaged RV, which was ultimately denied by National General after several of the company’s investigators found the incident to be suspicious and reported claiming that the fire originated in two separate locations and was caused by the actions of an individual. The insurance company ultimately came to suspect that the plaintiff may have set the fire himself.

It is also notable that the Florida legislature is currently floating a proposal to adjust issues related to bad faith lawsuits brought against insurers here in Florida; a proposal that would ultimately benefit insurance carriers, who currently face bad faith actions fairly regularly when it comes to disputes over coverage.

Florida lawmakers are currently considering a bill that would affect a number of commercial landlord and tenant issues by addressing the ability for tenants to keep emotional support animals. Specifically, while it would prohibit landlords from charging more for emotional support animals, it would also allow them to ask for proof and hold a pet owner liable for any damage that they cause to property. In addition, the legislation mandates that any pet owners who obtain fraudulent letters in order to keep their pets as emotional support animals would also be penalized.

The bill has come about in part as a result of commercial landlords complaining that people are exploiting their ability to simply keep a pet with them at all times by claiming that they are emotional support animals.

For legal purposes, it is important to distinguish between service dogs covered under the Americans with Disabilities Act (ADA) and emotional support dogs. The ADA dictates that individuals with disabilities may have their service animals in all areas that constitute “public accommodations,” such as stores, restaurants, schools, hotels, apartments, etc. These animals are specifically trained to assist someone with mental, physical, psychiatric, intellectual, or other disability, and the animal’s work must be directly related to that. For example, if someone is blind, they may have an animal that helps them cross the street.