Block Law Firm | PLLC
Florida's Unique Lien Treatment of Horses
Both owners of horses and businesses who provide feed, care, and/or stables to horses should become keenly aware of some unique and strange rules regarding liens on horses. Owners should be especially careful to remain current on all amounts owed because if they fall behind on payments, the stable could sell the horse without notice to the owner to satisfy the debt as soon as one month from the beginning of the debt.
Mobile Home Lot Rent in Florida
With the coming of the new year, I have gotten more calls than usual from clients with questions about mobile home lot rent increases. Mobile homes are a curious area of the law blending elements from landlord/tenant law and real property principles. Florida lawmakers have attempted to protect mobile home owners and park owners by establishing a detailed statutory framework covering lot rent. In this post, I will attempt to explain the steps that park owners must take and the things that mobile home owners should know as lot increases are proposed and go into effect.
To start, Florida law does not require that lot rental agreements be in writing. Fla. Stat. §723.031(2) (2015). From the calls I have been getting, it is apparent to me that many mobile home owners get a written agreement from the park owner upon moving to the park but that park owners do not typically provide subsequent written agreements after the initial agreement has been terminated. When an agreement for lot rent is not made in writing, the duration of the agreement must be at least one year. Fla. Stat. §723.031(4) (2015). The practical effect of this statutory requirement is to provide mobile home owners with protection from a park owner who unilaterally changes the lot rent month to month. Such practices are prohibited by Florida law; lot rent changes may only occur once per year under an oral lot rent agreement.
Park owners must provide mobile home owners with written notice of all proposed increases at least ninety (90) days prior to the effective date of the increase. Fla. Stat. §723.037(1) (2015). There is no waiver of this statutory requirement through oral or written lease agreements. Id. Pass-through charges for capital improvements must be listed separately from other increases. Id. Park owners must file all increases imposed from the previous year with the state the following year. Fla. Stat. §723.037(3) (2015). Park owners must also hold information gathering meetings with the homeowners’ association (if one exists) or a committee up of to five (5) owners at least sixty (60) days prior to the rent increase. Fla. Stat. §723.037 (2015). If a majority of the affected mobile home owners object to the rent increase to the park owner in writing, the park owner and affected homeowners must submit to mediation to determine an equitable lot rent increase. Fla. Stat. §723.037(5) (2015).
Florida law allows a park owner to terminate the lot rental agreement with a mobile home owner after at least five (5) days have passed after a written demand has been made for payment of rent due. Fla. Stat. §723.061(1)(a) (2015). After a court action has been brought against a mobile home owner for nonpayment of rent, the mobile home owner can have the action dismissed only by paying all past due amounts, including late fees, interest, and other charges. Id. Actions are brought by park owners in county court and are eligible for expedited summary procedure, meaning that actions proceed quickly once filed. Fla. Stat. §723.061(3) (2015). Park owners comply with the requirements for eviction and demand for past due rent if they post written notices on the mobile home and sent to the last known address of the owner by certified/registered mail with return receipt requested. Fla. Stat. §723.061(4) (2015). After a judgment for nonpayment of rent and eviction has been entered against you, once ten (10) days have passed the court can issue a writ of possession to the park owner entitling the park owner to take possession of your mobile home and all personal property located on the lot. Fla. Stat. §723.062 (2015).
A mobile home owner’s only defense to a nonpayment of rent / eviction action is a material noncompliance with the requirements of Chapter 723 (see the above requirements). Fla. Stat. §723.063 (2015). Before an owner can establish a defense, the owner must make a written demand to the park owner specifying the material noncompliance and providing the park owner seven (7) days to come into compliance with Florida law. Id. The written demand must also specify whether the mobile home owner is withholding rent, including a portion thereof. Id. As I tell all of my clients, I highly recommend that mobile home owners obtain the assistance of counsel to prepare this written demand letter to ensure it meets statutory requirements.
Commonly with nonpayment of rent, my clients complain that the park owner or her agent has entered into their mobile home while the mobile home owner was away without the mobile home owner's permission. Under landlord/tenant law principles, a landlord may enter a tenant’s property without notice “[i]f the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the landlord of an intended absence, then the landlord may enter only with the consent of the tenant or for the protection or preservation of the premises.” Fla. Stat. §83.53(2)(d) (2015). The best way to avoid entry by the park owner into your unit is to remain current on all lot rent payments and to inform your park owner in writing if you plan on being away for at least half of the periodic rental period. For example, if you pay lot rent monthly, inform your park owner in writing if you will be away for at least 15 days.
NEVER WITHHOLD LOT RENT AS A "NEGOTIATING TACTIC" TO "FORCE" YOUR PARK OWNER TO PROVIDE YOU WITH A WRITTEN LEASE. This is the most common mistake mobile home owners make. If you have a specific complaint against the park owner, obtain the advice of an attorney to determine your legal rights.
Privacy is a major concern for Floridians, so much so that there is a section of our state constitution devoted to protecting citizens from government intrusion into one's private life. But what happens when someone other than the government starts prying into your private life?
Florida recognizes the common law tort of intrusion, otherwise known as intrusion upon seclusion. Intrusion is defined as "wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities." State Farm Fire & Cas. v. Compupay, Inc., 654 So.2d 944 (Fla. Dist. Ct. App. 1995). Unlike other privacy torts like defamation, intrusion does not require publication to others as an element; the intrusion alone is actionable.
So what kind of intrusions are covered? Actionable intrusion includes "physically or electronically intruding into one's private quarters." Allstate Ins. Co. v. Ginsberg, 863 So.2d 156, 162 (Fla. 2003). And we have already seen that private activities are covered as well. The place or activities intruded upon must be one in which there is a reasonable expectation of privacy. Id.
Let's pause here to consider what kinds of places this might include. Certainly, one's home and especially one's bedroom are covered. But what about more contemporary "places" like one's cell phone or email account? While the courts have not come to complete conclusions on electronic "places", if a person were to protect their cell phone or email account with a password or PIN, that should give rise to a reasonable expectation of privacy. And few things are more "personal" than one's cell phone. Hardly an hour goes by without the phone being used or at least on one's person or close belongings (purse, briefcase). This is certainly an area of the law that will grow as technological changes bring more devices into everyday use.
So assuming that the place intruded upon qualifies, does that mean that damages automatically result. Not quite. The intrusion must be highly offensive to a reasonable person. In a case of surveillance that might go too far, the surveillance itself "must have been done in a vicious and malicious manner not reasonably limited to a legitimate purpose." Catania v. Eastern Airlines, Inc., 381 So.2d 265, 268 (Fla. Dist. Ct. App. 1980). Malice can be found from "a motive to harm the plaintiff by the activity engaged in." Pinkerton National Detective Agency, Inc. v. Stevens, 132 S.E.2d 119, 124 (Ga. Ct. App. 1963). Surveillance is a common source of intrusion upon seclusion actions. Take this current case involving a Subway co-founder and recording equipment that led to a falling out and legal action between the co-founder and a former real estate partner in West Palm Beach.
Actionable intrusion needs to cause outrage or mental effects in order to become tortious. Physical or mental impairment must flow naturally from the tort itself as a consequence of the intrusion. Id. There must be some "mental impairment as opposed to mere fright, shock and hurt feelings." Id.
As our private lives become more and more public with the advent of technology, social media, and the ease of recording with a smartphone, I believe that claims of tortious intrusion upon seclusion will grow. The law already has adequate safeguards to provide recovery only for those actions that pry directly into places and activities that are meant to be private. Further, the law reduces the risk of frivolous lawsuits by requiring outrage and mental impairment to flow from the intrusion.
Ashley Madison Lawsuits - Florida's Abolition of the Economic Loss Rule Makes Them Possible
A popular topic of the news recently has been the filing of at least $500 million in lawsuits against website Ashley Madison, a site frequented by users seeking to enter into extra-marital relationships with other like-minded people. The popularity of this news topic provides me with a great opportunity to discuss "Con-Torts", a branch of civil litigation where the lines between pure Contract Law and pure Tort Law (Negligence) blur.
Wait a Second, Contracts on the Internet?
One might wonder, why would contract law come up in an Internet setting? I never signed anything and I never even got a piece of paper. Contractual agreements can arise even from purely electronic transactions between parties. With the use of Ashley Madison and other similar websites, the branches of contractual law called browse-wrap and click-wrap come into play. Browse-wrap is a contract or licensing agreement whereby a user, simply by using a website, agrees to abide by the site's terms of use or conditions of use. Hines v. Overstock.com, Inc., 668 F.Supp.2d 362, 366 (E.D.N.Y. 2009). Similarly, clickwrap agreements arise when a user clicks on an "I Agree" button in order to use a website, often with the terms of use listed above in a window or as a hyperlink that the user is instructed to read carefully before signifying agreement.
Going back to the classic elements of a contract (offer, acceptance, consideration), the offer from the website is to allow you to use the site pursuant to its terms and conditions; the clicking of "I Agree" or use of the site signifies a meeting of the minds on the terms of the offer; consideration is found through the benefits gained by the user of the site through use of the site/detriment to the provider of loss of bandwidth or the detriment of the user giving up their right to use the site as they wish/benefit of the site's increased traffic.
OK, So I "Signed" a Contract, Didn't the Website Breach?
Ashley Madison users been identified by email address, credit card information, name, and sexual proclivity in the data dump of user data made public by hackers. Didn't Ashley Madison have an obligation to keep this information secret?
Looking at the site's Terms and Conditions (TAC) and Privacy Policy, Ashley Madison does not make an affirmative pledge to safeguard user information from potential hackers. Rather, under the TAC, the site "cannot ensure the security or privacy of information you provide through the Internet and your email messages... You agree to release us, our parent, subsidiaries and affiliated entities and ours and their shareholders, officers, directors, employees and agents, successors and assigns from all claims, demands, damages, losses, liabilities of every kind, know and unknown, direct and contingent, disclosed and undisclosed, arising out of or in any way related to the release or use of such information by third parties." If effective, this waiver would seem to preclude simple contractual claims against Ashley Madison.
Further, the site (since it is a product sold to users) also expressly disclaims warranties in Sales Law and limits liability to $5,000 per user. The disclaimer is achieved through an "allocation of risk" whereby the user takes on all risk in exchange for the service being made available (it otherwise would expressly not be made available).
If effective, both the waiver of remedies for breach and the disclaimer of warranties would preclude recovery for injured parties in Contract Law and Sales (UCC) Law.
But They Were Negligent in Securing the Data!
Maybe Ashley Madison did have a duty to protect the information and maybe they did breach that duty (neither of which is clear until the litigation sorts out the respective duty and standard of care). But before we can even consider negligence as a theory of recovery, we need to examine the Economic Loss Rule.
Economic Loss Rule Precludes Tort Recovery for Parties to a Contract in Some Cases
The Economic Loss Rule is "the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby discourages [parties] to avoid causing physical harm to [other parties]." Casa Clara Condominium Ass'n, Inc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244, 1246 (Fla. 1993). The rule was created by the courts to preclude recovery in tort (negligence) when the only damages suffered were purely economic damages (money). Parties in privity to a contract were generally prohibited from recovery in tort for damages caused during performance of the contract. Laufen, Inc. v. Andrew, 83 So.3d 898 (Fla. App. 2012).
Economic Loss Rule Abolished in Florida
In a landmark case, the Florida Supreme Court found the Economic Loss Rule to have expanded to the point of being "unwise and unworkable in practice", especially with its numerous exceptions. Tiara Condo. Ass'n, Inc. v. Marsh, 110 So.3d 399, 407 (Fla. 2013). Departing from prior precedent, the Florida Supreme Court held that "the application of the economic loss rule is limited to products liability cases." Id.
Ashley Madison-type Cases in Florida Going Forward
So with the abolition of the Economic Loss Rule in Florida, parties to a contract are free to attempt to recover damages, even purely economic damages, in both tort and contract law. But in the Ashley Madison claims, the contract expressly limited damages to $5,000 per user and attempted to disclaim all liability for breach due to data hacking by third parties. Is that enough to preclude tort damages as well?
The Florida Supreme Court has yet to decide whether a party, through contract, can effectively preclude tort damages that were previously barred by the Economic Loss Rule. One can surmise that, without express language to the contrary, a party could be liable in tort for damages flowing from the contract. But what language is effective in barring tort liability? Can any contractual language bar negligence? Can contractual language establish the duty of care and limit tort damages (probably)?
While I do not have a clear answer to these questions yet, at least the abolition of the Economic Loss Rule will allow parties to seek these answers in future cases like Ashley Madison.
Neither Congress Nor the President Can End Birthright Citizenship
Yesterday, Republican presidential candidate Donald Trump announced that he, if elected President, would end birthright citizenship. Birthright citizenship is the principle that a child, even if born to illegal immigrants, automatically is bestowed with U.S. citizenship if that child was born while on U.S. soil (including overseas military bases, territories, and the like). So the question arises: Can Congress through statute or the President through executive action end birthright citizenship?
A quick look at the history of birthright citizenship is necessary to provide context to the eventual answer to this question. Originally, there were two schools of thought on birthright citizenship in pre-America Europe. Roman law, in an effort to perpetuate the feudal system, stated that citizenship followed the status of the parent. Thus, the child through descent and blood gained his/her citizenship and nationality just like any other physical trait. This served to ensure that the king and his vassals had a dedicated and loyal feudal base upon which to build long-standing kingdoms.
England, on the other hand, diverted from this practice. In 1700, the British statute of 11 & 12 Wm. III enacted that "all and every person or persons, being the king's natural-born subject or subjects, within any of the king's realms or dominions,' might and should thereafter lawfully inherit and make their titles by descent to any lands 'from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom' title should be made or derived, had been or should be 'born out of the king's allegiance, and out of his majesty's realms and dominions,' as fully and effectually, as if such parents or ancestors 'had been naturalized or natural-born subject or subjects within the king's dominions.'" 7 Statutes of the Realm, 590. In short, the statute established birthright citizenship. France soon codified a similar statute and by the time of the adoption of the 14th Amendment to the U.S. Constitution, "civilized" countries were split on the issue.
Article I, Section 8 of the U.S. Constitution gives Congress plenary power to enact laws related to immigration. Congress has acted to establish a very detailed and comprehensive immigration scheme, so why couldn't Congress simply eliminate birthright citizenship?
Favoring a policy of birthright citizenship (probably due to exploding immigration and an increased need in low-skilled labor), the 39th Congress passed the Civil Rights Act of 1866. The law stated, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States...." 14 Stat. 27-30. The same Congress later enacted a joint resolution to amend the Constitution with the same birthright citizenship provisions (probably fearing the repercussions if a later Congress were to repeal the Civil Rights Act of 1866). That language was formally ratified by the states and added to the U.S. Constitution as the 14th Amendment in 1868.
The Citizenship Clause of the 14th Amendment states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." If the plain language of the Amendment was not enough evidence that birthright citizenship is protected by the U.S. Constitution, the Supreme Court put to rest any lingering doubts in United States v. Wong Kim Ark, 169 U.S. 649 (1898). The question considered by the court was whether a child born on U.S. soil to parents who were in the U.S. illegally becomes a U.S. citizen by birthright citizenship under the 14th Amendment. Id. at 653.
After analysis that mirrors the above paragraphs in this post, the court held in the affirmative that birthright citizenship was protected by the 14th Amendment. Id. at 705.
Back to the initial question: Can Congress through statute or the President through executive action end birthright citizenship? The plain language of the Citizenship Clause of the 14th Amendment, the historical context of English common law (from which many U.S. legal principles derive their beginnings), and the Congressional intent of the 14th Amendment as indicated by the Civil Rights Act of 1866 are all clear—there is a Constitutional civil right of birthright citizenship for all people born on U.S. soil regardless of the immigration status of the parents.
Under the Supremacy Clause of the U.S. Constitution, Congress cannot subvert a constitutional right via statute and the President cannot subvert a constitutional right via executive action. Therefore, for Mr. Trump's goal to be achieved, either the States through conventions or Congress through joint resolution must amend the U.S. Constitution as prescribed therein.
Same-Sex Discrimination by Florida Businesses
"Lobbyist"—A Dirty Word But A Misunderstood Industry
Full disclosure—I am a former corporate lobbyist and part of my law practice includes representing clients' needs in government affairs, government relations, and lobbying.
In my experiences, I have witnessed many of the activities that are commonly associated with "lobbyists"; namely, the kind of discretions made infamous by Jack Abramoff and others. But I believe that the public as a whole believes that such conduct is MUCH more prevalent than it actually is. Lobbying and lobbyists are a necessary evil of politics and the vast majority of lobbyists and government affairs professionals are ethical and do things "the right way".
A brief history of lobbying: the name lobbyist came into popular parlance during (though not originating from) the days of President Ulysses S. Grant. President Grant was a frequent visitor to the Willard Hotel's bar close to the White House. Even in the mid-to-late 1800s, catching the ear of the President was a difficult thing to do. So when the word got out of the President's favorite watering hole, people seeking to influence public policy followed. President Grant hated the practice because it took him away from his cigar and brandy, but lobbyists soon became a great way for lawmakers to enjoy a drink or a meal on someone else's dime, all while learning about the issue de jour of their host.
Fast forward to today and there are more lobbyists and lobbying than ever. While some bemoan the practice, I am excited and proud to see the profession's growth. Lobbying is the First Amendment at its purest—a petition of grievances to the government and an exercise in democracy. Have you ever emailed or tweeted your elected official? If so, you are a "lobbyist", at least in the academic sense of the term. If not, why not? Communication no longer is restricted to smoky back rooms in a speakeasy next to Capitol Hill. You don't need to spend weeks and months courting an elected official's staff members in order to get on their boss's calendar. Today, you can contact your elected official at any level of the government, make a cognizable argument, and be sure that the member's staff member in charge of that policy area will read it. Make a good argument, and that staff member will have your message in front of the elected official during their daily briefing sessions.
Lobbying professionals will always have the advantage of being able to develop long-term relationships with policy leaders and develop reputations of knowledge and trust for their respective issues. Many also are involved in political action committees and fundraising efforts, giving lobbyists better access to elected officials than the average citizen. But the days of lobbyists enjoying a monopoly on communication with political leaders are over.
Elected officials are, by definition, elected by their constituents. If enough voters would educate themselves on the issues, organize communications with their elected official, and actually vote for candidates who support their positions, not even the most well-heeled professional lobbyist could change the elected official's position. Self-preservation trumps a free meal every time.
There are generally two schools of thought in lobbying: use monetary influence to build relationships with members in leadership positions so that you can call in "favors" when the time comes; OR (they generally are mutually exclusive from my experience) use your superior knowledge of the issue at hand to educate elected officials and your supporters through grassroots communication predicated on the elected official's fear of not being reelected because of their opposition to your position.
Full disclosure again—I am a proponent of the second option. First off, it is much cheaper and safer to go the education route. If the party or member(s) in which you have focussed your contributions is no longer in power or in a leadership position, you have to start over. Plus, it takes A LOT of money to move the political needle. There are well-funded industries all over the political spectrum who are extremely active in political campaigns and issue framing.
It is my opinion that good advocacy will trump campaign contributions for most elected officials. So give it a try and become a "citizen lobbyist". Stay abreast of important political issues that affect your daily life, be it your pocketbook or your lifestyle. Communicate your position to elected officials. You might find that "lobbyist" becomes less of a dirty word and more of a badge of honor to be worn proudly after realizing that you, too, can influence public policy and politics.
Used Cars in Florida - Buyer Beware!
When it comes to buying a used car in Florida, the old phrase "Buyer Beware" is especially applicable. Florida DOES NOT have a "Lemon Law" for used cars, so be especially careful when selecting a pre-owned vehicle.
ALWAYS ask if there is any warranty or guarantee period during which you can return the vehicle for service. See if there is an additional add-on warranty you can add to the vehicle. See if the dealer will allow you to have the car inspected by a trusted mechanic, whether on-site or off-site.
If the bill of sale or window sticker says "AS IS", the dealer is attempting to disclaim all warranties and you will probably not be able to return the vehicle for a refund or demand repairs from the dealer if something breaks as you drive the car off of the lot.
There is an old saying: "You get what you pay for." Sometimes that "great deal" for an As-Is used car is "too good to be true"!
Evidence of Juggalo Tendencies Allowed in Murder Trial
Juggalos have had it tough recently. For those of you who are unaware, Juggalos are the fans of a rap group called the Insane Clown Posse (ICP). ICP's lyrics allegedly have incited violent attacks against victims. Juggalos claim that the acts of a few crazed people should not be imputed to all of them.
The government already has labeled the Juggalos as a "gang" subject to increased surveillance under the National Gang Threat Assessment. Now, it appears as though courts might treat the group differently as well.
This case involves a Tennessee man and self-professed Juggalo who was convicted of using a hatchet to murder a middle-aged woman who was hosting him in her home in 2007. On appeal, he is claiming that testimony from police explaining the alleged violent propensities of Juggalos was irrelevant and unfairly prejudicial. The State argues that the evidence was directly relevant to the motive for the killing, which was described as completing a challenge posed by the lyrics of the song which would result in achieving a spiritual goal desired by devout Juggalos.
The appeals court held that the conviction would stand irrespective of the testimony. The defendant may still appeal to the state supreme court or seek post-conviction relief.
Minor League Baseball Class Action Filed
Spring Training is usually a happy time for baseball players as hope springs eternal for success in the upcoming season. But the life of a minor leaguer can be tough, as evidenced by this class action filed by three minor leaguers challenging the pay structure and lack of negotiations for their contracts.
As background, each major league ballclub is affiliated with several minor league clubs of varying skill levels. Major league teams acquire players either through the Amateur Draft or sign players as "free agents" without a draft process. Upon signing, the player receives a modest signing bonus and is paid their salary. Minor league salaries are nothing like the salaries for major league ballplayers and can be as low as a few thousand dollars for the entire season.
Major League Baseball implemented the Uniform Player Contract (UPC) in 2012 as part of the new collective bargaining agreement with the players' union. Under the system, the major league team has exclusive rights to the player for seven years, the team can transfer the player to other teams at will, and the player may be terminated without cause. Players, in contrast, have no freedom to sign with other teams or transfer their contract. The UPC requires salaries to be paid only during the playoffs, meaning that teams could choose not to pay regular salaries and instead pay a single lump sum during the playoffs.
Minor league players have not unionized like their major league counterparts. Additionally, like most major sports, Major League Baseball enjoys a unique antitrust exemption reinforced by Supreme Court decisions, so there is no competing league (and probably never will be absent a contrary court decision) for the players to reap the benefits of competition.
The UPC explicitly allows minor leaguers to negotiate their contract, but in reality these negotiations are allegedly sham negotiations according to the class action. The class action seeks wage increases based on the value of professional services rendered (quantum meruit) and compliance with state and federal wage & hour laws (which would require regular salary payments).
Racism is Alive & Well - How Respondeat Superior Might Lead to Trouble for Your Business!
People who have blessedly not been exposed to racism in some time might think the problem ended years ago, but cases like this remind all of us that racism and hate remain daily problems for some Americans.
This case has all of the tell-tale signs of a racism case from the 1960's: derogatory name-calling, physical threats and intimidation, assault and battery, threats to the victim at his home not to fight the attackers in court, et al.
While that is enough in and of itself to comment on, I must also note the response of management and his supervisor. The immediate supervisor thought that an apology was the right way to discipline a knife attack? Management everywhere should shudder at the thought.
Remember that under the doctrine of respondeat superior, employers can be liable for the torts of their employees committed within the scope of their employment. Be careful who you put in management! The wrong leader can lead to punitive damages and bad publicity that every company should seek to avoid.
How Do Sweepstakes Payouts Work?
You might know that sweepstakes prizes worth millions of dollars are actually paid by insurance companies, not the company that is promoting it. But you might not know why insurance companies would agree to such huge potential payoffs - policy premiums!
Insurance companies receive policy premiums from the company in exchange for taking on the risk of a huge payoff. A recent example is an alleged agreement between Yahoo! & an insurance company to pay $1 billion to anyone who submits a perfect NCAA March Madness bracket through the Yahoo! Sports website.
The insurance company alleges that Yahoo! breached by cancelling the agreement after paying only one installment of the policy premiums. If the insurance company's allegations are true, in order to cancel the agreement Yahoo! has to pay 1/2 of the agreed-upon policy premiums. Yahoo! claims that the contract allows them to cancel at any time without paying any additional premiums.
A basic tenet of contract law is that a contract is formed upon the congruence of all of the required elements of a contract: offer, acceptance, and consideration. Even if the "triggering event" (in this case the results of the basketball tournament) occurs in the future, an enforceable contract results when all three parts exist together.
This case will come down to the language of the contract itself, but I find more value in the example of a difference between a contract with duties that result upon the happening of a subsequent event (this one) and a contract with a condition precedent (I agree to pay you $10.00 if and only if the Atlanta Braves win the 2014 World Series). Contracts with conditions precedent are not breached until the triggering event occurs. The alleged contract in this case was allegedly breached by the unilateral termination by Yahoo! (I agree to pay policy premiums to you in exchange for your promise to cover me if someone submits a perfect NCAA bracket).
In order to profit from these agreements, insurance companies almost always phrase the agreement to form an enforceable agreement immediately without conditions precedent.
The distinction is a fine one; make sure to have an attorney draft contracts on your behalf.
Chemical Carcinogen = Earthworm? Only in Property Law!
When is a carcinogenic chemical equal to earthworms? When property law is involved, of course!
Put aside for a moment the fact that there are federal Clean Water Act and Resource Conservation and Recovery Act (RCRA) claims possible here. The case here seeks damages for homeowners whose property values dropped. Homeowners argue that the property value drop is tied to publicity surrounding benzene pollution by Shell Oil. Shell Oil argues that the drop was caused by other forces, including the Great Recession.
The 7th Circuit Court of Appeals (IL and other Midwest states) substantively held that the benzene pollution is akin to other undesirable features common in the ground of everyone's homes like insects and worms. A key fact leading to this ruling is that the drinking water for the affected class comes from an unpolluted source not threatened by the benzene. Had the drinking water itself been polluted, the court opines that the connection might be strong enough to support damages.
BETAMAX Case Transported to the 21st Century in Aereo
The name BETAMAX conjures up memories of the 80's, but it should also make you think of Netflix, video rentals, your DVR or TiVo, and cloud storage. Without the BETAMAX case in the 1980's, no recording devices would have been allowed and viewers would have never have had the opportunity to enjoy time-shifting and watching programs on their own schedule. Now SCOTUS is considering a case that brings the argument into the 21st Century.
In the 1980's, Sony was sued by Universal and Disney to block production of BETAMAX recording devices. BETAMAX, for those of you under 30, was a rival technology to the VCR (which eventually became the standard) that allowed users to record shows broadcast on TV or cable or satellite so that users could watch them when they wanted.
Universal and Disney were arguing that copyright protections would be eroded forever and that Fair Use (sampling an 80's song for a new rap song, for example) would be expanded beyond recognition.
The Supreme Court (SCOTUS) ultimately held that people could record portions of a show or the entire show so long as their intent was to watch the program later. Second, people could even resell or rent recordings of programs to others for profit so long as the recording has a substantial, legitimate use (i.e. was aired on free broadcasting channels, not cable).
We are all used to the first holding, but the second holding might be new to you. Expect the second part to hit the news as SCOTUS is now considering the Aereo case, the first major case since BETAMAX to examine the boundaries of time-shifting programming.
Aereo has created technology that uses a system of small antennas in an urban area to take live programming offered over the air by local broadcasters and stream it to subscribers who pay Aereo a fee for the service. Aereo's target customers are those who have cancelled cable and satellite and who use Netflix, Hulu, iTunes, Apple TV, and the other myriad Internet-based programming solutions. With Aereo, a person could watch live sports (think the Big Game for the NFL or March Madness) without paying for cable or satellite.
Aereo argues that it is simply a super-charged "rabbit ears" (back in the dark ages, people used antennas to watch TV, kids). Broadcasters are arguing that their creative content (and copyrights) are being infringed upon. Broadcasters also want use fees from the transmissions like they receive from cable and satellite providers.
If Aereo's argument prevails, broadcasters like FOX & CBS have threatened to move to cable, so this case has far-reaching implications.
Cell Phone Search Cases to be Decided This Session by SCOTUS
Big news this past Friday that SCOTUS (Supreme Court of the US) will take up two cases related to warrantless searches of arrestees' cell phones.
As a general matter, the 4th Amendment requires police to obtain a warrant before searching or seizing one's personal effects. However, SCOTUS has established several exceptions to the general rule including an exception that, after one is arrested, police may search and seize items on the person or within the person's wingspan in order to promote officer safety and prevent destruction of readily-available evidence.
The question being considered by SCOTUS in these cases is whether cell phones are unique because of the wealth of hyper-personal information contained within them or whether they are indistinguishable from other personal effects like car keys, wallets, address and appointment books (remember those?), folded handwritten notes, and the like.
Circuit courts are split on the issue and the hope is that SCOTUS solves the circuit split and provides a clear rule (preferably clearer than the GPS ruling last session!) on the treatment of arrestees' cell phones.
An owner of websites that publish names and likenesses of recent Florida arrestees will have to defend himself against invasion of privacy claims according to this federal ruling.
Florida's right to privacy is much more explicit and stronger than its federal counterpart. Unlike the US Constitution, Florida's Declaration of Rights includes a specific protection against the government intruding into your private life.
But what about intruders that aren't the government? In addition to the recognized common-law tort of invasion of privacy, Florida Statutes Section 540.08 prohibits companies and individuals from using your name, picture, or likeness without your express permission. The protection even lasts after you die (a designee or family member must then provide the consent).
This website was a commercial website according to the federal ruling because it received advertising revenue and provided a way for recent arrestees to pay the website to remove the arrestee's picture and name from the site.
From here, the defendant website owner will fight to win on the merits of the case. The case is still in its early stages and there is no timeline for the final decision yet.
Florida's Living Will Law As Applied to Pregnancy
The importance of making a living will has been getting a lot of publicity after the husband for a pregnant Texas woman, brain dead for almost two months, began his fight to end life support despite the pregnancy. Texas law arguably prohibits ending life support for a person who is pregnant. But what does Florida law say?
WHAT YOU NEED TO KNOW: Florida Statutes Section 765.113 requires that a person EXPLICITLY state that they do not want life-prolonging procedures if their child is not yet viable.
A "blanket" living will designating a surrogate to make decisions on your behalf might not be enough. If you want to ensure that your wishes are followed, you need to explicitly state in your living will that you do not want medical staff to keep you on life-prolonging machines and techniques to bring your child to viability.
It also is a good idea to include an explicit statement if you DO want life-prolonging measures taken to save the baby even if you will not be able to be revived.
Pets are Property, But Should It Be A Crime to Deny Ownership?
Pet lovers might not like this story very much, but the topic is worth discussion.
The law takes a very harsh look at pets. Simply put, pets are viewed as personal property like your television, wallet, and car. Pets have no "special" rights and disputes over pets are treated just like any other property dispute. That includes the "legal fiction" that damages can make the owner "whole" if their pet (property) is damaged or destroyed (killed).
As for the story itself, The District of Columbia has a law on the books that makes it a crime for a person to deny ownership of an animal when in fact they are the true owner of the animal. Exemptions exist for pet shops, animal shelters, and the like; but an individual owner faces a fine each time they deny ownership of their pet.
The plaintiff in this story is challenging the law based on the First Amendment. The plaintiff is an animal activist whose public speaking tour includes a message seeking to make the audience reevaluate the traditional notions of "pet" and "owner". He has declined public speaking appearances in the District to avoid violating the law.
SCOTUS Bursts NCAA's Video Game Appeal Bubble
Sports game fans and NCAA supporters had a rough day with SCOTUS (Supreme Court of the United States).
A brief background: Former collegiate players sued the NCAA for making profits off the players' names and likenesses. Those of you who have played EA Sports games in the past are no doubt familiar with players named "PF 31" for UCLA with Ed O'Bannon's height, weight, and attributes. Plaintiffs alleged misappropriation, a privacy tort that prevents tortfeasors from using one's name or likeness for pecuniary gain (profit) without the person's consent.
The gist of this ruling: Players won against the game providers and several arms of the NCAA. The NCAA chose not to appeal the decision and some argue tried to "freeload" their way through the appeals process, never thinking that EA and others would actually settle. But the companies did settle (goodbye NCAA Football & Basketball games) and now the NCAA is on the outside looking in (much like Kentucky in last year's NCAA Men's Basketball Tournament).
After the appeals lawsuit was settled between EA and the players, the NCAA's First Amendment arguments disappeared and the NCAA petitioned SCOTUS to intervene with their First Amendment arguments. SCOTUS rejected the motions to intervene today, endangering the NCAA in their attempts to rejoin the legal arguments.
Virginia Appeals Court Reacts to Defamatory Postings from Anonymous Authors
Many areas of the law are ancient and slow to change (think Contracts). But defamation is not one of them and that is why I am so fascinated by it.
Case in point: a Virginia Appeals Court has ruled that Yelp, a popular online review site, must disclose the names of seven anonymous posters who allegedly defamed a carpet cleaning service. In fact, the posters were not customers and had posted malicious comments alleging they were overcharged for services not ordered and the like.
WHAT YOU NEED TO KNOW: Defamatory language is not protected by the First Amendment of the U.S. Constitution or Florida's Declaration of Rights. If you post something "anonymously", that doesn't mean that your identity will be protected. Services like Yelp, in their Terms of Service, protect identities for "opinions" posted on their sites. If you are posting maliciously, the post is not your "opinion". Therefore, you are violating the Terms of Service for the site and sites can freely disclose your identity, even if there is no pending lawsuit.
If, as in this case, the online provider resists efforts to disclose identities, this court opinion suggests that, upon a showing that the post is from a non-customer, the court can compel the service to disclose the identity of the poster.
With the identity known, rest assured that the business will file a defamation suit against the poster. Be careful what you write on the Internet, even if you are posting anonymously.
Source: http://www.courthousenews.com/2014/01/09/64385.htm
