Posted on 10/12/2001 10:02:31 PM PDT by World'sGoneInsane
Edited on 07/06/2004 6:36:44 PM PDT by Jim Robinson. [history]
PANAMA CITY, Fla. (AP) -- A judge ruled Friday that a former waitress can sue Hooters over allegations the restaurant promised her a new Toyota for winning a beer sales contest then gave her a toy Yoda Star Wars doll. Jodee Berry, 26, won the contest in May and believed she'd drive away in a new car. She was blindfolded, led to the restaurant parking lot and found herself in front of a toy Yoda.
(Excerpt) Read more at nj.com ...
As for the legalities, she has a slam dunk case. The real dispute here is not really whether she will get the car; that is a done deal. The real dispute is who will get to decide who and how much more money she will get for additional damages.
ConservativeLawyer, What is your take on what is really at issue here?
She will win. Ping me if you can prove me wrong when there is a conclusion.
If you can come out of your obsession with the legal ramifications, and just come down to what a jury would do, she wins.
This is fraud. LOL or what ever the proper legal term is.
It is called "fraud in the inducement" or "fraudulent inducement".
Another factor is agency. Was the person who promised her the car authorized to act as an agent for the owners? Perhaps under the terms of her employment contract she was made aware that the sales manager couldn't bind the company to such a deal. Yet she relied on him despite reading in the manual that he couldn't deliver on any promises made on behalf of his employer. Isn't there an expectation on her to find out the terms and conditions of such a contest?
Obviously the guy thought he was playing a joke. But IMHO a bad joke is not an intention to commit fraud. Literally, he may win, since she technically won a toy yoda. But, I suppose some compensation is due..not much... perhaps $1 a glass or something. But as I said, it would be cheaper for the owners to just buy her a Toyota than to pay a retainer in this case.
Ms. Berry has won the first round on the threshold issue: i.e. whether she gets a jury trial or will she be forced to arbitration.
Arbitration clauses are generally enforceable, but in this case the article reads:
Company lawyers filed a motion to dismiss saying employees agree when hired to TRY TO settle disputes through mediation or arbitration before suing.
I don't know whether that is just sloppy writing on the part of the AP or whether the clause only requires that the parties "try" to settle the dispute before suing.
That doesn't sound very binding to me. Its an agreement to agree. One would expect a good binding arbitration clause to mandate arbitration for all disputes arising out of or relating to employment and expressly waive the right to a jury trial. Otherwise, why give the plaintiff a choice between arbitration (usually with a binding result, but not necessarily) and mediation (never binding result unless agreed by the parties at mediation)? And why say "before suing" if you don't contemplate a lawsuit if the "trying" fails?
Lastly, Ms. Berry's lawyer could argue that this promotion was a whole new contract that superseded the previous agreement, and therefore not bound by the arbitration provision.
Welcome to FreeRepublic!
In this case. I think one can safely assume the writing on the part of the reporter is sloppy. I can't imagine any arbitration clause would say "try". If it did, the rules of construction in contract law would tend to favor the plaintiff's interpretation.
Back to my main question. Do you think the issue of her getting the car is pretty much a done deal and that the only remaining real question is that of additional damages? Frankly, I think if Hooters could resolve this case at this point by simply giving her the car, they would do it. If Hooter's offered to give her the car now and pay her attorney's fees to this point, that would go over very well with a jury or an arbitrator. Is there a provision for a party to make an offer of settlement under Florida law or procedures. If so, that might quickly end this case if Hooters made such an offer.
I would think that "arising out of or related to" language would encompass the contest. Can't get much broader than that language, especially since the contest could be considered a "bonus" to the employee and not somethin that was taken away.
You of all people should know that there are no "done deals" in litigation!:)
Nonetheless, I think she has a strong case to recover the value of the car. But what model of Toyota?? Does she get a Tercel or a Landcruiser?
Getting additional damages gets dicey. You can't really recover for pain and suffering for a breach of contract case. She might eventually ask for punitive damages, but in Florida you can't ask for those until you jump through some procedural and evidentiary hoops.
Any settlement offers made would never be heard by the jury--they are all inadmissible in evidence as a matter of law.
And yes, Florida has an offer of settlement procedure as well as a mirror image demand for judgment procedure. I doubt this case will ever go to trial. Now that the motion to dismiss has been denied, the economics point toward settlement.
Touche'
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