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The Week In Torts – Cases from May 5, 2023
The “recourse-less” Covid toll
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 18
CASES FROM THE WEEK OF MAY 5, 2023
TRIAL COURT PROPERLY DISMISSED WITH PREJUDICE A CLASS ACTION SUIT BROUGHT BY UNIVERSITY STUDENTS ALLEGING BREACH OF CONTRACT BY FAILING TO PROVIDE IN PERSON SERVICES DURING THE COVID-19 PANDEMIC WHILE CONTINUING TO COLLECT FEES AND REFUSING TO PROVIDE REFUNDS.
Heine v. Florida Atlantic University Board of Trustees, 48 Fla. Law Weekly D863 (Fla. 4th DCA Apr. 26, 2023):
Students appealed the trial court’s order granting FAU’s motion to dismiss their class action suit with prejudice. They claimed that FAU breached a contract when the university failed to provide certain in person services during the COVID-19 pandemic yet continued to collect fees and refused to provide refunds.
Section 1009.24, Florida Statutes, does not expressly obligate the university to provide any specific on campus or in person services. As such, the plaintiffs had to identify an express written contractual obligation for the university to provide such services. Reasonable expectations based on implied agreements do not satisfy this requirement.
The complaint established that at best the existence of only an implied contract between the parties. Sovereign immunity barred those claims, as well as the unjust enrichment claim, and immunity is only waived for an express or written contract.
The court lamented how much COVID-19 took from college students among others. However, it explained that in some instances we are powerless to redress certain losses under the law. Because other state universities are facing similar lawsuits, the court certified a question of great public importance on the issue of whether sovereign immunity bars a breach of contact claim against a state university based on its failure to provide students with access to on campus services and facilities.
A PARTY MAY ONLY SEEK A SECOND DISQUALIFICATION OF A SUCCESSOR JUDGE IN AN INSTANCE WHERE THE PARTY DEMONSTRATES ACTUAL BIAS OR PREJUDICE.
Carnevale v. Shir, 48 Fla. Law Weekly D815 (Fla. 3rd DCA Apr. 26, 2023):
The party alleged that certain social media postings, coupled with a friendly relationship the proposed third-party intervenor and his counsel had with the judge, and the judge’s having allowed the third party to participate in hearings without being formally added as a party, supported disqualification.
The party had already successfully moved to disqualify the previous trial judge on the same basis earlier in the litigation.
A party may not seek a second disqualification of a successor judge except in instances where the party demonstrates actual bias or prejudice.
The court found that the petition contained mischaracterizations of both the facts and procedural history, and these shortcomings also undermined the claims of judicial bias, supporting denial on the merits.