Florida/Georgia Personal Injury & Workers Compensation

...counsel. The court then addressed both Florida law and New York law, and the application of each to the undisputed facts and relevant circumstances, finding entitlement to indemnification *1023 under both. The court concluded: 1. Pursuant to F.S.A. § 607.0850(8) and (9), "indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses," are awarded to D'Arata from The Chatlos Foundation....

...alties, and liabilities now or later imposed on, a domestic corporation of like character. (emphasis added) One duty or liability imposed upon domestic corporations is the obligation to indemnify officers, directors, employees and agents pursuant to section 607.0850: * * * (8) Indemnification and advancement of expenses as provided in this section shall continue as, unless otherwise provided when authorized or ratified, to a person who has ceased to be a director, officer, employee, or agent and...

...r agent is fairly and reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances ... In DeSaad v. Banco Industrial de Venzuela, 843 So.2d 953 (Fla. 3d DCA 2003), the third district held that section 607.0850 applied to a foreign corporation qualified to do business in Florida by virtue of section 607.1505(2). In that case, DeSaad was arrested for money laundering and conspiracy while employed by Banco Industrial. She successfully defended against those charges and sought indemnification against Banco Industrial, pursuant to section 607.0850. Her claim was dismissed on the basis that section 607.0850 was facially inapplicable to foreign corporations such as Banco Industrial and that inapplicability was not changed by the fact that Banco Industrial was operating under a certificate of authority to transact business in Florida. On appeal, the court held that section 607.0850 applied to Banco Industrial given the fact that it was qualified to do business in Florida....

...Dehon, Sr. and Arthur M. Dehon, Jr., were officers and directors of the Master Association at all times material to this proceeding. The trial court does not address this issue in its final judgment on attorney's fees, although the matter was raised below. Section 607.0850(1), Florida Statutes (1990), provides for indemnification of a person who is in an action (other than an action by, or in the right of, the corporation) by reason of his position as director, officer, employee, or agent of the corporation, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation. Section 607.0850(2) provides for indemnification if the person was a party to the proceeding by or in the right of the corporation to procure a judgment in its favor by reason of his position as stated above, if such person acted in good faith....

...entitled to control, yet failed to transfer the properties until forced to do so by this litigation. They also contend that the Dehons should not be indemnified for the fact that they wilfully refused to turn over control during that period of time. Section 607.0850(7) provides in pertinent part: *828 [I]ndemnification or advancement of expenses shall not be made to or on behalf of any director, officer, employee, or agent if a judgment or other final adjudication establishes that his actions, o...

...(d) Willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to produce a judgment in its favor or in a proceeding by or in the right of a shareholder. We recognize that section 607.0850(3) provides for indemnification to the extent that the party prevails, but note that the language in section 607.0850(7) specifically refers to the "cause of action" generally. Thus, if the trial court finds under section 607.0850(7) that the Dehons did not meet the requisite standard of conduct as it gave rise to the action, then they are not entitled to indemnification for prevailing on Count II....

...Because the trial court did not address this issue in the final judgment, we remand this issue to the trial court for consideration with instructions to make findings of fact and determine whether the Dehons are entitled to indemnification from the Master Association under section 607.0850....

...Accordingly, we affirm the final judgment and supplemental final judgment, as well as the attorney's fee award to appellees. We remand, however, with instructions to the trial court to determine whether the Dehons are entitled to the indemnity provided in section 607.0850, Florida Statutes....

...As appellants indicate, this section together with other sections of the Florida General Corporation Act was repealed effective July 1, 1990, and was replaced with the Florida Business Corporation Act. However, the identical statute has been codified in section 607.0850(3) in the new Act, leaving the indemnification principle intact.

...e-president of BIV. De Saad retained the services of attorney Beeler to represent her in the criminal proceedings. As part of their fee agreement, de Saad assigned Beeler her right to seek indemnification for attorney's fees and costs under sections 607.0850(1) and (3), Florida Statutes....[ [2] ] After a lengthy trial in which the jury found her guilty on all counts, the trial judge granted de Saad's motion for judgment of acquittal as to all counts finding that the United States had failed to prove all of the necessary elements of the alleged crimes....

...tion for attorney's fees incurred in her defense of the money laundering and conspiracy charges. BIV denied both claims. De Saad then filed the present state court action against BIV. Her amended complaint seeks statutory indemnification pursuant to section 607.0850 to recover the costs and attorney's fees in defending the money laundering charges and claims past wages based on breach of her Employment Contract with BIV....

...the trial court, explaining that "de Saad was prosecuted `by reason of the fact' that she was [a] director, officer, employee, or agent of the corporation and was acquitted because she was `successful on the merits or otherwise.'" Id. at 49 (quoting § 607.0850(1), (3), Fla....

...o"). Second, even if the indemnification statute was applicable to the foreign bank, or its Florida subsidiary, BIV Investments and Management, Inc., de Saad is not entitled to statutory indemnification because she cannot satisfy the requirements of section 607.0850, Florida Statutes....

...and is therefore subject to the law of the state of incorporation." (quoting Davis & Cox v. Summa Corp., 751 F.2d 1507, 1527 (9th Cir.1985))). Accordingly, pursuant to section 607.1505(3), Banco is not subject to Florida's indemnification provision, section 607.0850. De Saad argues that Banco subjected itself to section 607.0850 by executing an employment contract with de Saad, which stipulates the following: "This contract shall be governed solely and exclusively by the laws of the State of Florida, specifically those of Dade County, Florida.......

...ation of its internal affairs, including corporate indemnification. Moreover, even if Florida's indemnification statute applied to BIV, de Saad would still not be entitled to indemnification because the requirements of the statute are not satisfied. Section 607.0850(1), Florida Statutes, provides that a corporation may indemnify its agents for legal expenses under certain conditions: A corporation shall have power to indemnify any person who was or is a party to any proceeding (other than an act...

...ng indemnification can obtain mandatory indemnification under subsection (3). In other words, the mandatory indemnification provided for by subsection (3) may be reached only after the criteria for subsection (1) indemnification are established. See § 607.0850(3), Fla....

...bly incurred by him or her in connection therewith.") (emphasis added). Here, de Saad did not meet the requirements for indemnification under subsection (1) because she was not prosecuted "by reason of the fact" that she was a corporate officer. See § 607.0850(1), Fla....

...De Saad did not "act[] in good faith and in a manner ... she reasonably believed to be in, or not opposed to, the best interests of the corporation," as evidenced by her guilty plea as well as the fact that her actions were contrary to corporate policy. § 607.0850(1), Fla....

...CONCLUSION As explained above, Florida's indemnification statute does not apply to foreign corporations, such as Banco. And even if the statute did apply to BIV, de Saad would not be entitled to statutory indemnification because she cannot satisfy the requirements of section 607.0850(1)....

...vor of BIV against the claims of de Saad and Beeler in accordance with this opinion. It is so ordered. CANADY, C.J, and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. NOTES [1] We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. [2] Section 607.0850, Florida Statutes, has remained unchanged since 1989 with the exception of gender neutrality amendments in 1997....

...e-president of BIV. De Saad retained the services of attorney Beeler to represent her in the criminal proceedings. As part of their fee agreement, de Saad assigned Beeler her right to seek indemnification for attorney's fees and costs under sections 607.0850(1) and (3), Florida Statutes (1999)....

...tion for attorney's fees incurred in her defense of the money laundering and conspiracy charges. BIV denied both claims. De Saad then filed the present state court action against BIV. Her amended complaint seeks statutory indemnification pursuant to section 607.0850 to recover the costs and attorney's fees in defending the money laundering charges and claims past wages based on breach of her Employment Contract with BIV....

...BIV'S APPEAL OF THE FINAL SUMMARY JUDGMENT FOR INDEMNIFICATION BIV contends on appeal that the trial court did not apply the correct law on the claims for indemnification. We disagree. BIV argues, in support of its appeal, that a question remains, under the terms of sections 607.0850(1) and (3), as to whether or not de Saad's acquittal meets the statutory requirements of being "successful on the merits or otherwise," and whether the acts with which she was charged were performed by "reason of the fact" that she was an officer of the corporation. Section 607.0850, Florida Statutes (1999) provides in pertinent part: 607.0850 Indemnification of officers, directors, employees, and agents.— (1) A corporation shall have power to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation), by reason of...

...ly and reasonably incurred by him or her in connection therewith. (emphasis supplied). The case of Perconti v. Thornton Oil Corp., No. CIV. A. 18630-N.C., 2002 WL *49 982419 (Del.Ch.2002) interprets a Delaware statute, which is strikingly similar to section 607.0850, in a factually similar situation to the present....

...by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation.... 8 Del. C. § 145(c) (emphasis supplied). [4] We reject Appellants' contention that subsection (7) of 607.0850 proscribes indemnification to the Appellees because of the criminal charges filed against de Saad....

defeating a claim or showing good faith. See, e.g., § 607.0850(3), Fla. Stat. (2016). In contrast, advancement

...ation, Inc. ("Turkey Creek") against its former developer and directors. The claim alleged breach of fiduciary duty, conversion, breach of contract, and an accounting. In connection with this action, the trial court entered a final order pursuant to section 607.0850(9), Florida Statutes, requiring Turkey Creek to pay the defendants' attorney fees, in the amount of $22,500. Turkey Creek appeals this order. We agree that the trial court erred in determining that the defendants were entitled to the payment of their fees and expenses under the statute and we therefore reverse. Section 607.0850(9), Florida Statutes (1993) provides that the trial court may order a corporate plaintiff to indemnify the defendant for fees and expenses in an action by the corporation against one or more of its directors or employees....

...If the defendants are fairly and reasonably entitled to payment of their expenses by the corporation, under the circumstances of this cases, then the court may again enter such an order for indemnification. If not, however, no expenses can be awarded under the statute. We note that section 607.0850 is more likely to be applied when corporate employee or director is sued by a third party in relation to the actions of the employee or director as a corporate agent....

...To do so would be abrogation of legislative power.") (internal citations and quotations omitted) ). Here, the Florida legislature provided no language in the statute that created an obligation of indemnification. The Court finds two Florida statutes illustrative here. First, under Fla. Stat. § 607.0850 (3), the Florida legislature created an express statutory right to indemnification for corporate officers, directors, and employees who, acting in good faith, are sued as a representative of a corporation....

...of the Association, except as to matters wherein he shall be finally adjudged in such action, suit or proceeding, to be liable for or guilty of gross negligence or willful misconduct.... The directors based their statutory indemnification claim upon various provisions of section 607.0850, Florida Statutes (2007), entitled "Indemnification of officers, directors, employees, and agents." That statute allows a director to request a court to order a corporation to indemnify a director if the director reasonably incurs ex...

...cariously liable to a third person and seek recovery from the association whose action caused the damage. Rather, the directors, wholly ignoring the definition of "indemnity," have sought to transform the remaining language in bylaws article XII and section 607.0850 into a vehicle for recovering their attorney's fees and costs if they become the prevailing party in the association's *1182 suit for breach of fiduciary duty....

...The directors argue that two cases from this court recognize a right to indemnification in actions between a corporation and its directors. Those cases do not stand for that proposition. See O'Brien v. Precision Response Corp., 942 So.2d 1030, 1032-33 (Fla. 4th DCA 2006) (pursuant to section 607.0850, trial court should have awarded attorney's fees from corporation to chief operating officer who successfully defended claims which third party asserted against him); Hill v....

...er litigation expenses pursuant to association's bylaws). In reaching today's decision, we certify conflict with the First District's opinion in Turkey Creek Master Owners Ass'n v. Hope, 766 So.2d 1245 (Fla. 1st DCA 2000), which states: We note that section 607.0850 is more likely to be applied when [a] corporate employee or director is sued by a third party in relation to the actions of the employee or director as a corporate agent....

...Winicki of Winicki Law Firm, Jacksonville, for Appellant. John B. Macdonald of Brant, Moore, Macdonald & Wells, P.A., Jacksonville, for Appellee. PER CURIAM. Appellant, Investors Insurance Group, Inc. ("IIG"), appeals from a final judgment that indemnified appellee, Roger E. Kling, under section 607.0850, Florida Statutes (1995)....

...In 1993, the State of New York brought an action against Kling for the unpaid taxes, interest, and penalties of Ampat Group during the time in which he was president. Kling successfully defended himself against the action and brought this complaint against IIG for indemnification under section 607.0850, Florida Statutes (1995), and IIG's bylaws. IIG's bylaws, and those of Gemco as its predecessor in interest, required Gemco and IIG to indemnify all of the persons whom it was authorized to indemnify by statute. Under section 607.0850(1), Florida Statutes (1995), a parent company may indemnify someone who was a director or officer of a subsidiary corporation, if that person had taken the position at the request of the parent company. Furthermore, section 607.0850(3), Florida Statutes (1995) provides that in the event one of the protected persons has been successful on the merits or otherwise in defense of a proceeding of a nature subject to the discretionary indemnification provisions, the in...

...in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses actually and reasonably incurred by him in connection therewith. (emphasis added) Thus, under both its own bylaws and section 607.0850(3), IIG must indemnify Kling if he meets the criteria of section 607.0850(1)....

...The trial court chose to believe the testimony of Kling and found that "[t]he uncontradicted evidence apparently is that Ginsberg *1259 wanted [Kling] in that position to consolidate and re-form all of the metal and glass subsidiaries of Gemco." Applying section 607.0850(1) to that factual finding, the trial court concluded that Kling was an officer of the subsidiary corporation at the request of the parent corporation and was, therefore, entitled to indemnification....

...The parties consent to the continuing jurisdiction of the Panel for this purpose. PRC contends that this agreement constitutes O'Brien's waiver of court determination of his claim to indemnification attorneys fees. In the Arbitration, O'Brien sought relief from PRC for breach of indemnification agreement and on the basis of section 607.0850, Florida Statutes, for the advancement of expenses....

...r otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any Claim, Indemnitee shall be indemnified against all expenses incurred by Indemnitee in connection therewith." O'Brien also cited and relied on section 607.0850(3), governing the indemnification of officers, directors, employees, and agents in Florida: "To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith." § 607.0850(3), Fla....

...La Costa Beach Resort Condominium Ass’n, 14 So.3d 1179 (Fla. 4th DCA 2009). The Fourth District certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Turkey Creek Master Owners Ass’n v. Hope, 766 So.2d 1245 (Fla. 1st DCA 2000). 1 At issue is whether section 607.0850, Florida Statutes, 2 authorizes indemnification of corporate directors in actions brought against the directors by the corporation itself. We conclude that section 607.0850 provides for indemnification in cases in which a corporation has sued its own director....

...(La Costa), a timeshare condominium in Pompano Beach. 3 In July 2003, La Costa brought a suit against these directors for breach of fiduciary duty. After the verdict, the directors moved for a new trial and brought a separate indemnification action, pursuant to section 607.0850, against La Costa for expenses incurred in defending La Costa’s suit....

...hable to a third person and seek recovery from *1230 the association whose action caused the damage. Rather, the directors, wholly ignoring the definition of “indemnity,” have sought to transform the remaining language in bylaws article XII and section 607.0850 into a vehicle for recovering their attorney’s fees and costs if they become the prevailing party in [La Cos-tal’s suit for breach of fiduciary duty....

...tions between a corporation and its own directors, the directors did not state a cause of action. At the same time, the Fourth District certified conflict with the decision of the First District in Turkey Creek, 766 So.2d at 1247 , which stated that section 607.0850 provides for indemnification in cases in which a corporation has sued its own agent....

...ANALYSIS Indemnity is generally defined as the “duty to make good any loss, damage, or liability incurred by another” or “[t]he right of an injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty.” Black’s Law Dictionary 837 (9th ed. 2009). Section 607.0850, Florida Statutes, is Florida’s corporate indemnification statute, setting forth the conditions under which corporate directors, officers, employees, and agents are entitled to indemnification....

...udgment in its favor by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, or agent of another [entity]-” § 607.0850(2), Fla. Stat.; cf. § 607.0850(1), Fla....

...son of the fact that he or she is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, or agent of another [entity].... ”). The plain language of section 607.0850 does not prevent indemnification of directors when the underlying proceeding is between the corporation and its directors. The district courts applying section 607.0850 have routinely held that the statute provides for indemnification when the underlying lawsuit is between the corporation and its director, officer, employee, or agent....

...See O’Brien v. Precision Response Corp., 942 So.2d 1030 (Fla. 4th DCA 2006) (holding that a corporate officer successfully defending claims brought against him by the corporation is statutorily entitled to seek indemnification for attorneys fees under section 607.0850); Turkey Creek, 766 So.2d at 1247 (“However, [section 607.0850] also provides for indemnification in a case such as this one where a corporation has sued its own agent.”); Nat’l Portland Cement Co. v. Goudie, 718 So.2d 274 (Fla. 2d DCA 1998) (affirming an indemnification award under section 607.0850 to a corporate officer who successfully sued his former corporation for wrongful termination and defended against the corporation’s counterclaim for tortious conduct); Myakka Valley Ranches Improvement Ass’n v. Bieschke, 610 So.2d 3 (Fla. 2d DCA 1992) (trial court did not abuse its discretion awarding fees and costs under the predecessor to section 607.0850 to former directors for their underlying suit to *1231 review an association’s corporate books); Alternative Dev., Inc....

...Lucie Club & Apartment Homes Condo. Ass’n, 608 So.2d 822 (Fla. 4th DCA 1992) (when officers had prevailed in claims brought against them by their corporation, remanding cause to trial court for determination of whether the standards of conduct in section 607.0850(7) precluded indemnification). 4 Furthermore, throughout section 607.0850, the Legislature sets forth various restrictions on when indemnification is proper. See § 607.0850(1)-(9), Fla....

...able cause to believe his or her conduct was unlawful,” and mandatory indemnification under the statute occurs only “[t]o the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise.” § 607.0850(1), (3), Fla. Stat.; see also § 607.0850(7)(a)-(d), Fla....

...But none of these enumerated restrictions on indemnification excludes all lawsuits between a corporation and its director. Therefore, the Fourth District’s reasoning and conclusion in Wendt are at odds with the plain language of the statute. III. CONCLUSION For the reasons addressed above, we hold that section 607.0850 authorizes corporate directors to seek indemnification from the corporation for actions brought against the directors by the corporation itself....

...le under the facts of this case. It is so ordered. CANADY, C.J., and LEWIS, POLSTON, LABARGA, and PERRY, JJ„ concur. QUINCE, J., dissents with an opinion. PARIENTE, J., recused. . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. . Because section 607.0850, Florida Statutes, has remained unchanged since 1989, with the exception of gender neutrality amendments in 1997, see ch....

...4th DCA 2010), and Wendt, 14 So.3d 1179 . . Although the Fourth District in Wendt attempts to distinguish its prior decision in O’Brien and does not acknowledge its prior decision in Alternative Development, both previous cases correctly presume that section 607.0850 allows a corporate officer who has been sued by his corporation to seek indemnification from the corporation.

...For example, as the petitioners recognize, Initial Brief of Petitioners at 45, the Legislature defined “liability” to mean “the obligation to pay a judgment, settlement, penalty, fine . . . or reasonable expenses incurred with respect to a proceeding” in chapter 607, the Florida Business Corporation Act. § 607.0850(5), Fla....

...Mayers answered Corporation’s complaint and, both individually and derivatively on behalf of Corporation, asserted counterclaims against Corporation and third-party claims against Corporation’s former attorney and law firm, and several of Corporation’s shareholders and officers. Mayers then, pursuant to section 607.0850(9) of the Florida Statutes1 and the indemnification provision contained in Corporation’s shareholder agreement, filed a verified motion seeking an order requiring Corporation to “pay all of Mayers’ 1 This statute provides a...

...3d DCA 1996). From our jurisdictional perspective, we view the instant order – determining only a shareholder’s right to advancement of litigation expenses under an indemnification provision contained in a shareholder’s agreement and as provided by section 607.0850 – as being substantially similar to those orders that merely entitle a party to attorney’s fees, without setting an 2 This provision of the rule reads, in its entirety: (3) Appeals to the district courts of appeal o...

NESBITT, Senior Judge. Esperanza de Saad, a former employee of BANCO INDUSTRIAL DE VENEZUELA, C.A., MIAMI AGENCY (“BIV Miami”), appeals from a judgment on the pleadings dismissing her statutory indemnification claim which, under Section 607.0850, Florida Statutes (2000), sought to recover the “actual and reasonable” expenses of her allegedly successful defense against ten money laundering charges and one conspiracy charge, after having been arrested during her employment with BIV Miami....

...as BIV Miami, and further holding that this inapplicability was not changed by the fact that BIV Miami is operating under a certificate of authority to transact business in Florida, pursuant to Section 607.1505, Florida Statutes (2000). We reverse. Section 607.0850 applies to BIV Miami given the fact that it is qualified to do business in Florida and thus, pursuant to Section 607.1505(2), assumes the same liabilities imposed upon a domestic corporation....

...ictions, penalties, and liabilities now or later imposed on, a domestic corporation of like character, (emphasis added). The trial court’s ruling is in derogation of the plain language of Section 607.1505(2) which must be read in pari materia with Section 607.0850. Section 607.0850(3) provides: To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of an...

...n connection therewith, (emphasis added). BIV Miami argues that since Chapter 607 defines “corporation” or “domestic corporation” as “a corporation for profit, which is not a foreign corporation,” the use of the term “corporation” in Section 607.0850(3) necessarily is limited to domestic corporations and is inapplicable to foreign corporations, even those with a certificate of authority under Section 607.1505. The bank’s argument simply ignores the language of § 607.1505(2) quoted above. While there is no authority directly analyzing the applicability of Section 607.0850, Florida Statutes to a foreign corporation qualified to transact business in Florida, in Hollander v....

...Similarly, National Rifle held that, for purposes of a forum non conveniens analysis, a certificate to transact business did not automatically mean that a party had a Florida location. 591 So.2d at 1022 . These cases are distinguishable from the instant situation in which Section 607.0850(3) clearly imposes a liability as contemplated by Section 607.1505(2). The judgment on the pleadings dismissing de Saad’s statutory indemnification claim under Section 607.0850, Florida Statutes is reversed, and this matter is remanded for entry of judgment on the pleadings in de Saad’s favor on the limited basis that Section 607.0850, Florida Statutes is applicable to BIV Miami as a foreign corporation operating under a valid certificate of authority pursuant to Section 607.1505(2), Florida Statutes, and for further proceedings consistent herewith....

...de Venezuela C.A., Miami Agency v. de Saad, 68 So. 3d 895, 900 (Fla. 2011) (observing: “Here, de Saad did not meet the requirements for indemnification. . . because she was not prosecuted ‘by reason of the fact’ that she was a corporate officer. See § 607.0850(1), Fla....