IN THE SUPREME COURT OF FLORIDA

Filing # 19562225 Electronically Filed 10/20/2014 11:30:55 AM RECEIVED, 10/20/2014 11:34:02, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO.: SC14-1845 Third District Case No. 3D13-2153 CARLOS BERMUDEZ, individually, as surviving husband of GLORIA LILIANA BERMUDEZ, deceased, as personal representative of the estate of GLORIA LILIANA BERMUDEZ, deceased, and as father and natural guardian of MATTHEW BERMUDEZ, a minor, Petitioner, vs. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Respondent. On Discretionary Review from the Third District Court of Appeal of Florida PETITIONER S BRIEF ON JURISDICTION Ramon M. Rodriguez, Esquire Ramon M. Rodriguez, P.A. 782 N.W. LeJeune Road Suite 537 Miami, FL 33126 (305) 448-2008 rmr.lawoffice@att.net FL Bar No. 832812 Maria L. Rubio, Esquire 9100 South Dadeland Blvd. One Datran Center, Suite 1510 Miami, FL 33156 (305) 670-1164 pleadings@marialrubio.com lisa@marialrubio.com FL Bar No. 623891 Attorneys for Petitioner

TABLE OF CONTENTS TABLE OF CITATIONS... iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT... 5 I. The Third District s Decision Expressly and Directly Conflicts With Auto Mutual Indemnity Co. v. Shaw, 184 So. 852 (1938), and Perera v. United States Fid. & Guar. Co., 35 So. 3d 893 (Fla. 2010)... 5 II. The Third District s Decision Expressly and Directly Conflicts With Pollizzi v. Paulshock, 52 So. 3d 786 (Fla. 5th DCA 2010), and Hill, Darlington & Grimm v. Duggar, 177 So. 2d 734 (Fla. 2d DCA 1965)..... 8 CONCLUSION... 10 CERTIFICATE OF SERVICE... 12 CERTIFICATE OF COMPLIANCE... 13 ii

Cases TABLE OF CITATIONS Auto Mutual Indemnity Co. v. Shaw, 184 So. 852 (1938)... 5, 6, 7, 8 Bert v. Bermudez, 95 So. 3d 274 (Fla. 3d DCA 2012)... 2 Hill, Darlington & Grimm v. Duggar, 177 So. 2d 734 (Fla. 2d DCA 1965)... 8, 9, 10 Jacobson v. Sklaire, 92 So. 3d 228 (Fla. 3d DCA 2012)...2, 3 Miccosukee Tribe of Indians of S. Fla. v. Bermudez, 145 So. 3d 157 (Fla. 3d DCA 2014)... Passim Miccosukee Tribe of Indians v. Bermudez, 92 So. 3d 232 (Fla. 3d DCA 2012)...1, 2 Perera v. United States Fid. & Guar. Co., 35 So. 3d 893 (Fla. 2010)... 5, 6, 7, 8 Pollizzi v. Paulshock, 52 So. 3d 786 (Fla. 5th DCA 2010)... 8, 9, 10 Statutes 56.29, Florida Statutes (2012)... 9 iii

STATEMENT OF THE CASE AND FACTS Petitioner s wife was killed, their infant son injured, and Petitioner himself was injured, in a head-on automobile accident caused by Tammy Gwen Billie, a member of the Miccosukee Tribe of Indians of Florida (the Tribe), who was driving a car owned by Jimmie Bert, also a member of the Tribe. Miccosukee Tribe of Indians of S. Fla. v. Bermudez, 145 So. 3d 157 (Fla. 3d DCA 2014) (Appendix at 2). After filing a negligence suit against Billie and Bert, a jury found Petitioner was entitled to $3.177 million in damages, and a corresponding final judgment was entered in his favor. Id. More than five years later, Petitioner still has not collected his judgment. Id. Despite having employed a high price law firm to defend them, 1 neither Billie nor Bert had an automobile insurance policy with an insurance company, and both claimed to have no assets, and to be impoverished and unable to pay the judgment. Id. The Tribe could have simply paid the judgment for its tribal members and recouped the funds by a gradual and incremental assessment over time against tribal distributions made to Billie and Bert. App. 7. 1 See Miccosukee Tribe of Indians v. Bermudez, 92 So. 3d 232 (Fla. 3d DCA 2012) (referenced at App. 6, n.1) (Bermudez V). 1

The Tribe chose to direct that funds in amounts that exceed the money required simply to pay the judgment, be expended to pay for legal fees to obstruct Petitioner s efforts to collect the judgment, instead of using those funds to pay the judgment. Id. at 2 & 7. The Tribe s litigation tactics resulted in the need for no fewer than 10 appeals. App. 6. It was disputed whether the Tribe was funding the obstructive litigation on its own behalf (as its lawyer claimed) or with the payments to be charged against Billie s and Bert s current and future distributions (as its former Chairman and former Accounting Supervisor/Finance Officer claimed). Bermudez V, 92 So. 3d at 234. See also Bert v. Bermudez, 95 So. 3d 274 (Fla. 3d DCA 2012) (referenced at App. 6, n.1) (Bermudez VI). Based on its directing and funding the obfuscation of Petitioner s collection efforts, Petitioner filed a motion in the trial court to add the Tribe as an additional judgment debtor. App. 2. The trial court granted the motion and entered a second final judgment naming the Tribe as judgment debtor. Id. On appeal, the Third District reversed. Id. Initially, the court rejected the argument that the Tribe could be held liable based on out of state cases holding that a nonparty that funds and directs litigation can be treated as a party to the lawsuit. App. 3-4. The Third District then distinguished Jacobson v. Sklaire, 92 So. 3d 228 (Fla. 3d DCA 2012), in which the court affirmed an order holding co-trustees of a 2

trust, who had dissipated the assets of the trust, personally liable to a beneficiary for attorney s fees and costs that had been ordered to be paid to the beneficiary from the trust. According to the Third District, Jacobson was distinguishable because in that case, the co-trustees appeared in the lawsuit, albeit in their fiduciary capacity, and the decision held them liable only for attorney s fees that resulted, at least in part, from their wrongful conduct of removing assets from the trust that was the subject of the lawsuit. App. 4. Finally, the Third District distinguished a line of cases it characterized as holding that a nonparty to litigation who funds and controls vexatious litigation can be deemed a party for purposes of paying costs and attorney s fees. App. 4-5. Those cases, the court said, deal only with attorney s fees for vexatious litigation; not whether a third party to litigation can be liable for a tort judgment against someone else. App. 5. The Third District explained that [a]s a matter of public policy, we have concerns about the unintended consequences of Bermudez s theory because it would punish people for helping others defend themselves against a lawsuit. App. 6. Although Petitioner s family may justly feel frustration that its attempts to collect its judgment have been thwarted through the Tribe s efforts, the Third District stated that [n]o law supports Bermudez s claim. App. 7. It summarized its holding as being that a nonparty cannot be added to a lawsuit after a final 3

judgment has been entered in order to hold the nonparty liable to pay the tort damages awarded against another merely because the nonparty funded or assisted in the defense of a lawsuit. Id. Petitioner timely filed a notice to invoke this Court s discretionary jurisdiction. SUMMARY OF ARGUMENT The Third District held that a nonparty cannot be added to a lawsuit after a final judgment has been entered in order to hold the nonparty liable to pay the tort damages awarded against another merely because the nonparty funded or assisted in the defense of a lawsuit. That holding is in express and direct conflict with decisions of this Court on the issue of whether a nonparty can be held liable for a tort judgment against an underlying defendant based on the nonparty s conduct in directing and funding the defense of the litigation. In addition, the Third District concluded that the Tribe could not be impleaded and be held liable for any portion of the judgment, despite the Tribe s participation in directing funds attributable to Billie and Bert, to be used not to pay Petitioner s damages, as the judgment required, but to obstruct Petitioner s efforts to receive payment from Billie and Bert. That holding directly and expressly conflicts with holdings of the Fifth and Second Districts on the issue of when a nonparty may be impleaded and held liable for an unpaid judgment. 4

ARGUMENT As explained below, the Third District s decision conflicts with decisions of this Court and other District Courts of Appeal. I. The Third District s Decision Expressly and Directly Conflicts With Auto Mutual Indemnity Co. v. Shaw, 184 So. 852 (1938), and Perera v. United States Fid. & Guar. Co., 35 So. 3d 893 (Fla. 2010) The Third District held that the Tribe could not be held liable for tort damages owed to Petitioner because the underlying tort judgment was entered against Billie and Bert, not the Tribe. It mattered not that the Tribe thwarted Petitioner s efforts to collect by directing and controlling the litigation efforts to obstruct Petitioner, and directed that funds paid on behalf of Billie and Bert be paid toward those obstructive litigation efforts instead of to pay the judgment. That the tort judgment was against third parties was determinative, because a nonparty cannot be held liable to pay the tort damages awarded against another merely because the nonparty funded or assisted in the defense of a lawsuit. That holding conflicts with this Court s decisions, most notably Auto Mutual Indemnity Co. v. Shaw, 184 So. 852 (1938), and Perera v. United States Fid. & Guar. Co., 35 So. 3d 893 (Fla. 2010), on the issue of whether a nonparty s conduct in funding and directing the defense of litigation can make it liable to pay a judgment entered against the defendant. In both Shaw and Perera, this Court held that under Florida common law, a nonparty to an underlying tort action, namely the 5

defendant s insurer, can, in fact, be held liable to pay tort damages awarded against another, namely the defendant, merely because the nonparty funded or assisted in the defense of a lawsuit. Perera, 35 So. 3d at 898-899; Shaw, 184 So. at 857. And the nonparty insurer can be held liable directly to the claimant. Id. That is because when a nonparty assumes the obligation of conducting the defense of a lawsuit, Florida common law negligence principles govern its conduct, and it can be held liable when its conduct is negligent: [T]he insurer, having agreed to assume and conduct the defense of actions brought to recover damages for injuries assumes the obligation of conducting such defense with ordinary care, skill and prudence, and that if it fails to do so it is guilty of actionable negligence for which there may be a recovery. These cases are based on the unquestionably sound doctrine that where there is a negligent breach of a legal duty the injured party has a remedy. Shaw, 184 So. at 857 (emphasis added). The essence of the common law of bad faith is that it is as a direct result of its conduct in directing litigation and expending funds for legal fees instead of paying damages that the nonparty insurer can be held liable to pay damages to the claimant for which the tort defendant was judged liable. Perera, 35 So. 3d at 899. And the liability of the nonparty insurer is not dependent on there being in place a specific type of policy. Id. The primary consideration is whether the nonparty s conduct resulted in damage. Id. at 902. 6

Thus, in Shaw and Perera, this Court made clear that nonparties can be held liable for a judgment against another based on their conduct in directing and funding litigation instead of paying damages to the claimant. In holding that a nonparty cannot be held liable to pay the tort damages awarded against another merely because the nonparty funded or assisted in the defense of a lawsuit, the Third District s decision is in express and direct conflict with Shaw and Perera. Although the Tribe may not be an insurance company licensed by the State of Florida, Shaw makes clear that liability is not based on licensure as an insurer, but is based on common law negligence principles that apply to any actor who assumes a duty. And the Tribe assumed for itself a role that was functionally equivalent to the role assumed by insurers that can result in bad faith liability. It is notable that neither Billie nor Bert bothered to obtain an automobile insurance policy backed by an insurance company, perhaps due to their knowledge that the Tribe would serve that function for them. Much like an insurance company, the Tribe paid for counsel to represent Billie and Bert. It made litigation decisions, including regarding whether to settle, despite remaining behind the scenes. Most important, like an insurer, the Tribe decided how funds available to be paid on behalf of Billie and Bert would be used whether to pay damages rightfully owed to the claimant, Petitioner, or in an effort to prevent Petitioner from obtaining payment. While Billie and Bert may not 7

have had a written policy of insurance with the Tribe, common law bad faith liability to a third party claimant is not dependent on a contractual obligation to pay damages; the insurer can be held liable for damages far in excess of contractual limits. Thus, just as insurance company is liable to a claimant when its litigation conduct amounts to bad faith, the Tribe can and should be held liable for its own bad faith conduct in carrying out the role of insurer. In holding that the Tribe could not be held liable, because no nonparty s litigation conduct can make it liable for a tort judgment against another, the Third District s decision expressly and directly conflicts with Shaw, Perera, and other decisions of this Court. This Court should accept jurisdiction. II. The Third District s Decision Expressly and Directly Conflicts With Pollizzi v. Paulshock, 52 So. 3d 786 (Fla. 5th DCA 2010), and Hill, Darlington & Grimm v. Duggar, 177 So. 2d 734 (Fla. 2d DCA 1965) In holding that the Tribe could not be added as a judgment debtor after the entry of final judgment based on its conduct in funding and directing the obstruction of Petitioner s collection of his damages, the Third District s decision is in express and direct conflict with Pollizzi v. Paulshock, 52 So. 3d 786, 789 (Fla. 5th DCA 2010), on the issue of whether a nonparty can be impleaded postjudgment and held liable for the judgment based on the nonparty s diversion of assets attributable to the judgment debtor to avoid payment to the judgment 8

creditor. By contrast to the Third District s holding here, in Pollizzi, the Fifth District explained that 56.29, Florida Statutes, allows for nonparties to be impleaded post-judgment so long as the judgment remains unsatisfied, and that 56.29 must be given a liberal construction in order to afford a judgment creditor the most complete relief possible. Id. at 789. And 56.29 allows for a money judgment to be entered against such nonparties where they have improperly diverted funds that could have been used by the original defendant to satisfy the judgment. Id.; see also Hill, Darlington & Grimm v. Duggar, 177 So. 2d 734 (Fla. 2d D 1965) (holding a nonparty could be liable for payment of judgment where it facilitated transfer of litigant s funds). The Third District acknowledged that Billie and Bert had an ongoing financial relationship with the Tribe that involved the Tribe paying distributions to Billie and Bert. It also acknowledged that the Tribe s former Chairman testified that the payments made to fund the obstruction of Petitioner s collection efforts were traceable to Billie s and Bert s current and future distributions. Thus, the Tribe had control over the distribution of Billie s and Bert s funds. Yet, rather than distributing those funds to pay Petitioner s damages, as the judgment required, the Tribe directed that millions of dollars of funds be used to pay Billie s and Bert s defense attorneys for obstructive litigation to prevent Petitioner from being paid his damages. Construing 56.29 liberally in order to 9

afford a judgment creditor the most complete relief possible, Pollizzi, 52 So. 3d at 789, it was proper to add the Tribe as a party and enter a money judgment against the Tribe to recover damages based on the funds the Tribe participated in diverting from payment of the judgment to an improper end, Hill, 177 So. 2d 734. As the Third District observed, the amount of diverted funds exceeded the amount of the judgment. Thus, under Pollizzi and Hill, it was proper to enter judgment against the Tribe for the full amount. But, in conflict with those decisions, the Third District concluded that the Tribe s conduct could not make it liable to pay the judgment because it was a nonparty. Moreover, the addition of the Tribe as a judgment debtor ensured that the Tribe s funds would rightfully be applied to the judgment and thus, prevent any further funding of vexatious litigation designed to obstruct collection efforts. CONCLUSION Because the Third District s decision expressly and directly conflicts with decisions of this Court and decisions of the Fifth District and Second District Courts of Appeal, this Court has jurisdiction to review the Third District s decision. The Court should exercise that jurisdiction and accept review. 10

Respectfully submitted, By: s/ Ramon M. Rodriguez Ramon M. Rodriguez, Esquire Ramon M. Rodriguez, P.A. 782 N.W. LeJeune Road Suite 537 Miami, FL 33126 (305) 448-2008 rmr.lawoffice@att.net FL Bar No. 832812 -and- Maria L. Rubio, Esquire 9100 South Dadeland Blvd. One Datran Center, Suite 1510 Miami, FL 33156 (305) 670-1164 pleadings@marialrubio.com lisa@marialrubio.com FL Bar No. 623891 Attorneys for Petitioner 11

CERTIFICATE OF SERVICE I hereby certify that on October 20, 2014, a true and correct copy of the foregoing was furnished by email to the following: Bernardo Roman III Tribal Attorney Miccosukee Tribe of Indians of Florida P.O. Box 440021, Tamiami Station Miami, Florida 33144 bromanlaw@bellsouth.net yesenia@bromanlaw.com yinet@bromanlaw.com shenna@bromanlaw.com yumy@bromanlaw.com Ira M. Elegant 46 S.W. First Street, Fourth Floor Miami, Florida 33130 ielegant@belaw.cc pgreen@belaw.cc Paul A. Calli Nancy C. Ciampa Jack R. Reiter CARLTON FIELDS P.A. 100 S.E. 2nd Street Suite 4000 Miami, Florida 33131 jreiter@cfjblaw.com lofrances@cfjblaw.com nciampa@cfjblaw.com cschmidle@cfjblaw.com pcalli@cfjblaw.com cbussone@cfjblaw.com miaecf@cfdom.net Jose M. Herrera 2350 Coral Way, Suite 201 Miami, Florida 33145 jmh@herreralawfirm.com vrodriguez@herreralawfirm.com gaguilera@herreralawfirm.com s/ Ramon M. Rodriguez Ramon M. Rodriguez 12

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing brief complies with the requirements set forth in Florida Rule of Appellate Procedure 9.210(a)(2). It was typed in Times New Roman 14-point font. s/ Ramon M. Rodriguez Ramon M. Rodriguez 13