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Liquidated Damages Clause Deemed Invalid

In Cloud v. Schenk, 1D03-2023 decided April 6, 2004 (Fla. 1DCA 2004), the Florida First District Court of Appeal held that a real estate sales contract that contained a liquidated damages clause that provided that in the event of a default, the seller would be entitled to keep the deposit as damages or seller at seller’s option could proceed to enforce the contract was deemed to be invalid.  The liquidated damages clause was deemed invalid because the option to either retain the deposit as liquidated damages or to bring an action for actual damages, constitutes a penalty as a matter of law and is not valid.  The decision relied upon the Florida Supreme Court authority of Lefemine v. Baron, 573 So.2d 326 (Fla. 1991).

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Living Will Initiative Launched by Florida Bar

The Florida Bar in conjunction with the Florida Medical Association launch an initiative to educate the public on the benefits of living wills and health care surrogates.

The Florida Bar and the Florida Medical Association have recently partnered to launch a joint initiative to educate Florida residents on the benefits of having a living will and health care surrogate.  Kelly Overstreet Johnson, President-Elect of the Florida Bar and Dr. Rick Lentz, President of the Florida Medical Association, announced the campaign at a press conference in Tallahassee, Florida. 

The Florida Bar is asking that its members help by providing information on living wills and health care surrogates to their clients.  Florida residents should consider end of life decisions now to protect their right to choose or refuse medical treatment.  In Florida, a person has a statutory right to choose or refuse medical treatment or procedures which would only prolong life when a terminal condition exists.  Additionally, Florida law permits a person to plan for incapacity by designating another person to act on his or her behalf in making necessary medical decisions upon incapacity.

Please feel free to contact this office should you desire more information on a living will or health care surrogate or need assistance in drafting these documents. 
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A Battery Upon a Person Does Not State a Claim for Invasion of Privacy

In Allstate Ins. Co. v. Victor Ginsberg, SC00-2614 (Fla. 2003), opinion filed September 18, 2003, the Florida Supreme Court considered the claim of an employee who alleged that her employer subjected her to unwelcome physical touching, including claims for battery, intentional infliction of emotional distress, and invasion of privacy.  The employee’s claim was given to the Employer’s insurer for a defense.  The Employer’s insurer refused coverage asserting that employee’s claim for invasion of privacy was not proper.

The invasion of privacy is a distinct cause of action in Florida.  The right to privacy is the right to be let alone, the right to live in a community without being held up to the public gaze if you do not want to be held up to the public gaze.  The right to privacy can be invaded by (1) intrusion into a person’s physical solitude or seclusion; (2) public disclosure of private facts; (3) placing a person in a false light in the public eye; and (4) the appropriation and exploitation of the property value of one’s name.

The Florida Supreme Court held that the definiton of the invasion of privacy is not so broad as to include the intrusion into or upon a physical body part.  Rather, the physical intrusion as contemplated by an invasion of privacy entails the intrusion into a “place” in which there is a reasonable expectation of privacy.  Accordingly, the invasion of privacy focuses upon the right of a private person to be free from public gaze.  As such, the employee’s battery claim fails to state a cause of action for invasion of privacy.

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Withdrawing Attorney Not Entitled to Contingent Fee

In Kirschner v. Biritz, 5D02-3012 decided 4/25/2003, (Fla. 5DCA 2003), the Florida Fifth District Court of Appeal held that an attorney that withdrew from a personal injury case before the case was settled did not retain a right to a contingent attorney’s fee.  The attorney forfeits a right to compensation unless the client’s own conduct makes the representation either legally impossible or would cause the attorney to violate an ethical rule.  Had the attorney been discharged without cause by the client, the attorney would have been entitled to a contingent attorney’s fee.

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