Tuesday, August 14, 2018

Personal Injury attorney Sarah Ellen Cox starts legal blog and commentary on Personal Injury matters


Personal Injury attorney Sarah Cox starts legal blog and commentary on Personal Injury matters

Fort Myers, FL August 2018 – The Law Office of Sarah Cox & Associates, LLC announced today that principal attorney Sarah Cox is setting up a new legal blog https://SarahECoxBlog.blogspot.com/ which will focus primarily on Personal Injury Law, and how the law is changing.

“With all the recent news and misinformation regarding Personal Injury matters, I felt that I could help explain the truths behind the real issues at hand” said Attorney Sarah Cox. “I have a decade of experience working in this area, and can help people understand the issues, and obtain initial information when they need legal help.”

Personal Injury law encompasses a broad range of legal matters, such as slip-and-fall actions, vehicle accidents, boating accidents, and even dog bites. Generally, one must show that another person was careless or negligent, and that such carelessness caused the injury. Also, one has to remember that the time to file such an action is generally four years in Florida (“Statute of Limitations”). Thus, a person as four years from the date of the accident to file a lawsuit in Florida courts (Florida Statutes Annotated Section 95.11(3)).

Adds Ms. Cox, “if you have an injured, you should also know that in Florida, most personal injury lawyers will accept cases on a ‘contingency basis.’ This means that if you lose your case, you pay the attorney nothing. The attorney does not charge up front, but will take a percentage of the proceeds from the case, from a settlement or court judgment.”

Lawyer Sarah Cox is planning to inform the public about such developments that they may not read about in the newspaper or see on television. But she cautions that “of course, if you have been injured, you will need specific legal advice based on the circumstances of your case.”

About Sarah Cox

Sarah E. Cox is a Personal Injury attorney in Fort Myers, Florida. Ms. Cox received her Juris Doctor from Whittier School of Law in 2005, and was admitted to the Florida Bar in 2008.

Contact

Law Office of Sarah Cox & Associates, LLC
5055 Greenbriar Drive
Fort Myers, FL 33919-1910
Office: (305) 563-0475

News about Sarah E. Cox are at: https://attorneygazette.com/sarah-ellen-cox#.




*** About Sarah Ellen Cox: Sarah E. Cox is a Personal Injury attorney in Fort Myers, Florida. Ms. Cox received her Juris Doctor from Whittier School of Law in 2005, and was admitted to the Florida Bar in 2008. News about Sarah E. Cox are at: https://attorneygazette.com/sarah-ellen-cox# Attorney Profile at: https://solomonlawguild.com/sarah-ellen-cox Blog at: http://SarahECoxBlog.blogspot.com

Wednesday, August 1, 2018

Sarah E Cox: Plaintiff, Nova Scotia resident injured in Wyoming auto accident where limitations law requires filing suit within four years of accident sued U.S. residents in own provincial court where Plaintiffs (unlike in Wyoming) may commence civil actions merely by filing complaint; Nova Scotia Court of Appeal rules that suit was timely since Plaintiff had filed his pleadings in compliance with Nova Scotia procedural rules within four years of collision in obedience to Wyoming substantive law


Plaintiff, Nova Scotia resident injured in Wyoming auto accident where limitations law requires filing suit within four years of accident sued U.S. residents in own provincial court where Plaintiffs (unlike in Wyoming) may commence civil actions merely by filing complaint; Nova Scotia Court of Appeal rules that suit was timely since Plaintiff had filed his pleadings in compliance with Nova Scotia procedural rules within four years of collision in obedience to Wyoming substantive law 

Back in 2000, a motor vehicle accident in Wyoming, U.S.A. injured Richard Vogler (Plaintiff), a Nova Scotia resident. In January 2003, he filed an action in the Nova Scotia courts against the Defendants Christopher Szendroi, the driver, and Carole Sheehan, the owner of the vehicle in which Plaintiff was riding at the time. Service of these pleadings has been, at the very least, delayed. It was not until May of 2006, some three years after the filing of the action and six years after the accident, that the Plaintiff served Defendant Sheehan in California. It appears that the Plaintiff has not yet served Defendant Szendroi, a resident of Quebec.

A Wyoming statute requires a Plaintiff to file a civil action such as this within four years of the accident. At the heart of this appeal is Wyoming’s Rule of Civil Procedure 3 which seems to link the commencement of an action to service of process. Subparagraph (a) provides that a Plaintiff commences an action by filing a complaint with the court. Subparagraph (b) then specifies that, if Plaintiff fails to serve the pleadings within 60 days of filing, Plaintiff does not “commence” the action until the date of service: 

In Nova Scotia, on the other hand, a Plaintiff starts an action simply by filing the appropriate pleadings. Civil Procedure Rule 9.01 provides: “Subject to rule 9.06(2) every proceeding, ... shall be commenced by filing an originating notice and a copy thereof in the prothonotary’s office, and the notice is deemed to have been issued on the day it is filed.”
The following basic choice‑of‑law principles govern this appeal. Regardless of where Plaintiff files an action, the substantive laws of the jurisdiction where the alleged tort took place (the lex loci delicti) apply – here the State of Wyoming. The law generally classifies limitation periods as “substantive.” In this case, all parties acknowledge that Wyoming’s four‑year rule is substantive and does apply to the Plaintiff’s case.
On the other hand, forum law and/or rules will govern procedures in such a case as this, i.e., the rules of Nova Scotia procedure. From this flows an important corollary. Wyoming’s rules of procedure have no application in Nova Scotia. This leads to the ultimate issue on appeal: Is Wyoming Rule 3(b) substantive or procedural in nature? If it is substantive, then it applies to the Plaintiff and bars this Nova Scotia action. On the other hand, if it is procedural, it does not apply in this case and the Plaintiff’s action remains timely because it complied with Wyoming’s substantive four‑year rule.

The lower court granted Defendant’s motion to quash and Plaintiff appealed. The Nova Scotia Court of Appeal decides it need only address the first two of Plaintiff’s claims of error: [1] that the trial judge erred in law in failing to apply the law of Nova Scotia in determining whether Wyoming R. Civ. P. Rule 3(b) was substantive or procedural in nature; [2] that the trial judge erred in law in finding that Rule 3(b) was substantive rather than procedural in nature. Finding merit in Plaintiff’s contentions, the Court allows Plaintiffs appeal and sets aside the dismissal order.
The lead opinion then sets forth the Court’s rationale. “The second ground identifies the ultimate issue that I have noted above, namely: Is Rule 3(b) substantive or procedural in nature? As observed, the Plaintiff asserts that the judge erroneously found it to be substantive. As the analysis of that ultimate issue also addresses the first ground, I will deal with them as a single ground of appeal.” [¶ 14]
“Let me begin by initially addressing the standard upon which we should review the judge’s decision. This is an appeal from a discretionary interlocutory order which normally would attract significant deference. However, because the effect of this order was to finally dispose of [Plaintiff’s] action, less deference is owed. Our review, therefore, examines whether there was an error in law resulting in an injustice.”
“In considering this question, it is noteworthy that there was no factual dispute before the Chambers judge. He was engaged strictly in legal analysis involving a question of private international law. In other words, if the judge did err in his analysis, it would be an error of law that would leave us free to substitute what we would view as the proper result. [Cites].”
“I begin my analysis by explaining, in some detail, the distinction between substantive law and procedural law. Consider the respective definitions as set out in Black’s Law Dictionary, 8th ed. (St. Paul, MN: Thomson West, 2004). Substantive law involves a litigant’s rights or obligations. [It is] the part of the law that creates, defines, and regulates the rights, duties, and powers of parties. On the other hand, procedural law involves the process by which a litigant’s rights or obligations are enforced or defended. Thus, procedural law is defined as: [t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.”
“Thus, as noted over 60 years ago by John Salmond in Jurisprudence 476 (Glanville L. Williams ed., 10th ed. 1947), these two concepts are inextricably linked: ‘So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.’”

“This court has described the distinction between substantive and procedural law in these terms: ‘[S]ubstantive law creates rights and obligations and is concerned with the ends which the administration of justice seeks to attain, whereas procedural law is the vehicle providing the means and instruments by which those ends are attained. It regulates the conduct of Courts and litigants in respect of the litigation itself whereas substantive law determines their conduct and relations in respect of the matters litigated.’” [¶¶ 16‑20]
“... [T]here is no dispute that Wyoming’s substantive law applies in this matter. As the parties have acknowledged, Wyoming’s statutory four‑year limitation period is a matter of substantive law. See Tolofson v. Jensen, [1994] 3 S.C.R. 1022 (S.C.C.) at ¶¶ 86 ‑88. Therefore, [Plaintiff] had four years to commence his action. His present Nova Scotia action was filed within four years.”
“...[T]here is no question that matters of procedure, on the other hand, are governed by the law of the domestic forum, in this case Nova Scotia (see Tolofson at ¶ 41). Thus, the consequences of determining [Wyoming] Rule 3(b) as either substantive or procedural come to the fore. If Rule 3(b) is substantive, it applies in this case and [Plaintiff’s] action, because of the late service, will have lapsed. If it is procedural, Rule 3(b) has no application in this case and the Nova Scotia action is preserved.”
“There exists this further underlying question. When approaching and resolving this issue, is our analysis governed by domestic Nova Scotia law or does Wyoming’s jurisprudence on this provision apply? The undisputed answer is that Nova Scotia jurisprudence governs the analysis. Thus, we should ask: If such a provision existed in Nova Scotia, applying Nova Scotia’s jurisprudence, would it be considered substantive or procedural? See Somers v. Fournier , [2002] O.J. No. 2543 (Ont. C.A.) at ¶¶ 20 &31, and Brown v. Flaharty, [2004] O.J. No. 5278 (Ont. S.C.J.) at ¶ 9.
“Returning to the ultimate question of whether Rule 3(b) is substantive or procedural, we must draw our attention to the true subject matter of the impugned provision. In other words, is Rule 3(b) about timing as the respondents suggest, i.e., concerning when an action must be commenced? If so, and given its alignment with Wyoming’s four‑year statutory rule, it would appear to be more substantive than procedural in nature. On the other hand, the Plaintiff suggests that this provision is not about timing but about methodology. In other words, it describes the manner in which an action is (or is deemed to have been) commenced. That would be a subject matter more akin to procedure.”
“In summary, when approaching questions such as these, I would advocate a three‑step analysis: 1. identify the exact subject matter covered by the impugned foreign provision; 2. determine whether, in the domestic forum (in this case Nova Scotia), this subject matter would be considered procedural or substantive; and, 3. if the subject matter would be characterized as substantive, then the foreign provision should be applied. On the other hand, if the subject matter is characterized as procedural, then the foreign provision should not be applied.” [¶¶ 24‑28]
“By tying Rule 3(b) to the Wyoming Statute of Limitations, the judge, erroneously I believe, concluded that Rule 3(b) involved filing deadlines – i.e., when an action must be started. However, in my view, Rule 3(b) does not involve when an action must be commenced. That issue is clearly set out in Wyoming’s Statute of Limitations, which prescribes four years. As acknowledged, this four‑year rule, like most limitation period provisions, is substantive in nature. Instead I view Rule 3(b) as directing how an action is commenced. In Wyoming this task involves both filing and service. In Nova Scotia, as noted, the task is completed simply by filing the relevant documentation.” [¶ 32]
“I disagree with this submission. In my view, this introductory phrase in Rule 3(b) simply identifies the rationale for the provision. In other words, Rule 3(b) sets out the process for complying with statutory deadlines for filing actions. In this case, the limitation period is four years and that is prescribed by statute. Nothing in Rule 3(b) changes that. Again, it simply directs how one can comply with this prerequisite. In summary, Rule 3(b) is not about how long you have to file a claim; it is about how a plaintiff commences a claim.” [¶ 35]
“[T]wo substantive rights are at stake in this appeal: [Plaintiff’s] right to sue the [Defendants] in negligence and the [Defendants’] corresponding right not to be sued after four years.... Rule 3(b) sets out the manner in which [Plaintiff’s] right is pursued. Viewed in this light, Rule 3(b) does not alter, nor is it linked to, the [Defendants’] rights not to be sued after four years. All this, in my opinion, leads to the inescapable conclusion that Rule 3(b) is procedural and not substantive in nature.”
“In summary, the Chambers judge erred in concluding that Rule 3(b) was substantive in nature and thereby enforceable as a bar to [Plaintiff’s] Nova Scotia action. Instead, Rule 3(b) is a Wyoming Rule of Civil Procedure and therefore has no application to this case. Pursuant to Nova Scotia Civil Procedure Rule 9.01, [Plaintiff] commenced his action by filing it. He did so within four years. His claim should not have been dismissed.” [¶¶ 40‑41]

Citation: Vogler v. Szendroi, 2008 CarswellNS 85; 2008 N.S.C.A. 18; 50 C.P.C. (6th) 264 (2008).


*** About Sarah Ellen Cox: Sarah E. Cox is a Personal Injury attorney in Fort Myers, Florida. Ms. Cox received her Juris Doctor from Whittier School of Law in 2005, and was admitted to the Florida Bar in 2008. News about Sarah E. Cox are at: https://attorneygazette.com/sarah-ellen-cox# Attorney Profile at: https://solomonlawguild.com/sarah-ellen-cox Blog at: http://SarahECoxBlog.blogspot.com

Sarah E Cox, In personal injury case at sea, Eleventh Circuit affirms a motion to compel arbitration based on the New York Convention, so long as the agreement concerns subject matter capable of settlement by arbitration


In personal injury case at sea, Eleventh Circuit affirms a motion to compel arbitration based on the New York Convention, so long as the agreement concerns subject matter capable of settlement by arbitration

Plaintiff Harold Leonel Pineda Lindo, a citizen and resident of Nicaragua, began employment with NCL Ltd., a Bermudan corporation with its principal place of business in Miami, Florida. In December 2008, Lindo claims that he injured his back while on board one of NCL’s vessels while acting within the scope of his employment, later requiring surgery for his personal injury. Lindo’s employment contract with NCL was governed by a collective bargaining agreement. The contract also states that all personal injury and Jones Act claims would be resolved by binding arbitration pursuant to the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards. The contract stated that the place of arbitration would be the place of the employee’s citizenship, unless arbitration is unavailable under the Convention in that country, in which case it shall take place in Nassau, Bahamas. The choice of law would be that of the flag state of the vessel (Bahamas). 

Lindo challenged having arbitration, arguing that the claim would arise under Bahamian negligence law, not the Jones Act. Lindo then filed a lawsuit in Florida state court. NCL moved to compel arbitration and removal to federal court. Lindo amended his complaint to allege a single count of Jones Act negligence. The district court granted NCL’s motion to compel arbitration and dismissed Lindo’s amended complaint. Lindo appealed.

The United States Court of Appeals for the Eleventh Circuit affirmed the district court's order to compel arbitration of Lindo’s Jones Act negligence claim. The Court began by evaluating the New York Convention. This Convention recognizes written arbitration agreements concerning subject matter capable of settlement by arbitration. Both Nicaragua and the Bahamas are signatories to the Convention. Both parties agree that the Convention applies to Lindo’s contract. 

After reviewing the Convention and Supreme Court and circuit court precedent, the Court concludes that the district court properly enforced Lindo’s arbitration agreement and rules that the Jones Act claims must be arbitrated in a foreign forum (Nicaragua) under Bahamian law. The Court notes that there is a strong presumption in favor of freely negotiated contractual choice of law and forum selection provisions. The presumption applies greatly with regard to international commerce. 

“Indeed, the Convention provides that contracting states ‘shall recognize’ written agreements wherein parties agree to submit any and all disputes to settlement by arbitration. New York Convention, art. II(1). This Circuit has stated, in agreement with other circuits, that ‘a court conducts a very limited inquiry’ when ‘deciding a motion to compel arbitration under the Convention Act.’ Bautista v. Star Cruises, 396 F.3d 1294 (11th Cir. 2005) (quotation marks omitted).” 652 F.3d 1275.

Next, the Court evaluates whether a null‑and‑void defense would apply to the arbitration agreement, thereby making it inoperable. “In Bautista, this Court held that an arbitration agreement is null and void under Article II(3) of the Convention only where it is obtained through those limited situations, ‘such as fraud, mistake, duress, and waiver,’ constituting ‘standard breach‑of‑contract defenses’ that ‘can be applied neutrally on an international scale.’ 396 F.3d at 1302 (quotation marks omitted). Lindo’s Contract incorporates a union‑negotiated CBA, and there is no claim—much less any showing—of fraud, mistake, duress, or waiver. To the extent Lindo relies on Article II, his claim fails.” 652 F.3d 1276.

“Lindo argued that the arbitration provision is unconscionable, maintaining that he signed the Contract on a “take‑it‑or‑leave‑the‑ship” basis. However, this was the same argument asserted by the plaintiff seamen in Bautista. . . . This Court expressly rejected that argument, concluding that an unconscionability defense was not available under Article II of the Convention.” 652 F.3d 1276.

Another defense to arbitration enforcement is one based the public policy of the United States under Article V of the Convention. The Court states that this defense does not apply because Article V only applies at the arbitral award‑enforcement stage, not at the arbitration‑enforcement stage at issue here. “Article V expressly provides, ‘Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that ... [t]he recognition or enforcement of the award would be contrary to the public policy of that country.’ New York Convention, art. V(2) (emphasis added). Yet, Article V has no application in the interlocutory procedural posture of this case, where NCL seeks to enforce arbitration at the outset of the dispute.” 652 F.3d 1280. 

Lastly, the Court denies Lindo’s arguments against the enforcement of the arbitration agreement, stating that “Lindo’s challenge to his arbitration agreement fails because (1) Bahamian law itself recognizes negligence actions; and (2) even if, as Lindo claims, U.S. law under the Jones Act has a more relaxed causation standard for negligence claims than Bahamian law, these were precisely the same arguments lodged (and rejected [by this Court]) in [Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 (11th Cir.1998)].” 652 F.3d 1283.

In Lipcon, the Court held “that the choice‑of‑law and forum‑selection clauses were enforceable and ordered the matter to be heard in English courts under English law, since we will declare unenforceable choice clauses only when the remedies available in the chosen forum are so inadequate that enforcement would be fundamentally unfair.” 652 F.3d 1283 (internal citation omitted).
“In Lindo’s case, the arbitration clause, if anything, is fundamentally fair for several reasons. For starters, the clause is part of a union‑negotiated collective bargaining agreement. The fact that the Jones Act claim was expressly referenced in that CBA is clear indication that this type of claim was expressly considered during the negotiation process. Lindo cannot obtain the advantages of his union‑negotiated Contract, while rejecting what he now perceives as its disadvantages. This union‑negotiated agreement is enforceable and valid even if it waives Lindo’s U.S. statutory claim under the Jones Act.” 652 F.3d 1284.

“Lastly, Lindo’s position would effectively eviscerate the mutually binding nature of the Convention. Lindo maintains that his arbitration agreement is void as against public policy because he cannot assert his U.S. statutory rights under Bahamian law. By this logic, courts in other nations could likewise refuse to recognize valid, mutually agreed‑upon arbitration provisions if they contemplated the application of American law, in derogation of home‑based statutory remedies. Yet if every country refused to recognize arbitration agreements that contemplate the application of foreign law, the multilateral commitment of the Convention would be defeated.” 652 F.3d 1284.
Citation: Lindo v. NCL (Bahamas), 652 F.3d 1257 (11th Cir. 2011).



*** About Sarah Ellen Cox: Sarah E. Cox is a Personal Injury attorney in Fort Myers, Florida. Ms. Cox received her Juris Doctor from Whittier School of Law in 2005, and was admitted to the Florida Bar in 2008. News about Sarah E. Cox are at: https://attorneygazette.com/sarah-ellen-cox# Attorney Profile at: https://solomonlawguild.com/sarah-ellen-cox Blog at: http://SarahECoxBlog.blogspot.com