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| December 17, 2009 |
By: Review staff & VerdictSearch |
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Markenzy Lapointe and Stuart Singer
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ase: Carnival Corp. vs. U.S. Bank National Association
Case No: 1:08-cv-22401
Description: Breach of contract
Filing date: Aug. 1, 2008
Judge: U.S. District Judge Marcia Cooke
Plaintiff attorneys: Stuart Singer, Fort Lauderdale; Markenzy Lapointe, Miami; and William Dzurilla, Fort Lauderdale, Boies Schiller & Flexner
Defense attorneys: Charles Nauen and David Zoll, Lockridge Grindal & Nauen, Minneapolis; Alex Alvarez, Alvarez Law Firm, Coral Gables
Outcome: $3.29 million
Details: In 1994, Miami-based Carnival, the world’s largest cruise-line company, entered into a contract with Minneapolis-based U.S. Bank of Minneapolis that provided rebates for the use of U.S. Bank credit cards by Carnival employees.
The contract was in keeping with a common practice of credit-card companies to offer rebates to major corporations. In November 2007, Carnival decided to transition to Bank of America and gave U.S. Bank 90 days’ notice that the contract would be terminated.
During that transition period, U.S. Bank did not pay rebates even though Carnival employees still charged millions of dollars on bank cards. By July 2008, Carnival employees had charged more than $200 million in purchases on their U.S. Bank credit cards.
Carnival sued in Miami-Dade Circuit Court, alleging the nonpayment of rebates breached the parties’ contract in three ways — breach of implied-in-fact contract, promissory estoppel and unjust enrichment. U.S. Bank removed the case to federal court, and trial was scheduled for mid-October. Following discovery, Carnival moved for summary judgment in August. Cooke heard the motion Oct. 7.
Plaintiff case: Plaintiffs argued that verbal and e-mailed communications from U.S. Bank indicated the rebates would continue during the 90-day transition phase and extend beyond that, if necessary, and the bank made no effort to cancel the credit cards.
Defense case: The defense argued no obligation existed to pay the rebates once Carnival terminated the rebate program ,and the e-mail traffic did not reflect a “true meeting of the minds.”
Results: Cooke ruled Oct. 27 in favor of the plaintiffs and awarding $2.95 million. In a final judgment entered Nov. 24, Cooke added pre-judgment interest of $343,500.
Quote: “This case presents a couple lessons for businesses large and small,” Lapointe said. “When the contract expires, that is not necessarily the end of the story. If you act as if there is still a contract, the law will apply.”
Post-award: No motions have been filed.
— Julie Kay
Workplace safety
Palm Beach Circuit Court
Worker gets $429,329 for power-saw accident
A jury awarded $429,329 to a man who lacerated his thigh with an electric circular saw because the blade guard allegedly malfunctioned.
In 2006, Jeff Rusinko, then 31, was a maintenance worker for Trailer Rental Group when he was using its saw.
After making a cut, he moved the saw from his right hand to his left, but the blade got caught on his shirt and cut his thigh. According to a co-worker, the blade guard did not wrap around the blade after Rusinko cut the wood.
The laceration required more than 100 stitches, and he suffered nerve damage. He now walks with a limp when he’s tired and can no longer play sports, he claimed. Rusinko argued the saw had malfunctioned before, and his employer was aware of it.
Case: Rusinko v. Trailer Rental Group Inc.
Case No.: 50 2007 CA 015551 AD
Plaintiff lawyers: Ronald I. Croft, Ronald I. Croft P.A., Seminole; Matthew E. Haynes, Johnson Haynes & Miller, West Palm Beach
Defense lawyers: Stanley Narkier, Stanley J. Narkier P.A., West Palm Beach
Battery
Broward Circuit Court
Davie settles over officer who paid for oral sex
The town of Davie agreed to pay $20,000 to a woman who claimed a police officer forced her to perform oral sex twice one night.
In 2007, the 32-year-old woman, whose name was withheld, was intoxicated around midnight when on-duty Officer Jonathan D. Sanders approached her in a patrol car. She allegedly complained about not having money, and Sanders instructed her to meet him behind a garbage bin at a McDonald’s restaurant.
After the encounter, Sanders gave the woman $5 and allegedly threatened to arrest her if she told anyone what happened. Later that night, the woman met Sanders in another parking lot and performed oral sex for $7. She said she thought that she would be arrested if she didn’t comply. Sanders pleaded no contest to a charge of unlawful compensation and spent 60 days in jail. He resigned as part of a plea agreement.
Case: Doe v. Town of Davie
Plaintiff lawyers: Robert A. Chitty, Robert A. Chitty P.A., Miami Shores; Jeffrey J. Waxman, Jeffrey J. Waxman Law Offices, Miami Shores
Defense lawyers: Onier Llopiz, Lydecker Lee Berga & de Zayas, Miami; George P. Roberts Jr., Roberts Reynolds Bedard & Tuzzio, West Palm Beach
Products liability
U.S. District Court, Tampa
Pain pump maker ruled not liable for injury
A federal court rejected a woman’s claim that a defective pain pump resulted in an infection and paralysis.
Linda Wolicki Gables sued pump manufacturer Arrow International claiming a catheter connector malfunctioned after a clog.
Gables said she suffered an infection that traveled to her spine via the pump.
Defense counsel contended the plaintiff could not cite a specific manufacturing defect that caused the connector to become clogged.
Defense counsel also noted the plaintiff’s expert conceded a catheter can become clogged even without a specific defect. The court noted the plaintiff was not able to prove exactly how the catheter malfunctioned.
Case: Gables v. Arrow International
Case No.: 8:08-cv-00151
Plaintiff lawyer: T. Patton Youngblood, Youngblood Law Firm, Tampa
Defense lawyers: Charles D. Bavol, Melissa D. Krepps and Nancy J. Stewig, Bavol Judge, Tampa; Penelope A. Dixon, Edward W. Gerecke and David J. Walz, Carlton Fields, Tampa
Motor Vehicle
Lee Circuit Court
Plaintiff recovers $76 for back injury
A driver who claimed a lumbar herniation in a rear-end collision recovered only $76.
In 2008, Taharica Jones was in an intersection collision with Candace Thompson. Jones claimed Thompson ignored a stop sign.
Thompson stated she had merely inched out and Jones was driving fast, which caused the accident.
Defense counsel also maintained Jones didn’t sustain a herniated disc.
The jury found the plaintiff 95 percent at fault and the defendant 5 percent at fault.
The $8,200 verdict was reduced by setoffs.
Case: Jones v. Thompson
Case No.: 08-CA-015718
Plaintiff lawyer: Greg Bosseler, Morgan & Morgan, Fort Myers
Defense lawyer: James T. Sparkman, Cole Scott & Kissane, Plantation
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