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The father of a University of Miami freshman who drowned during an alleged hazing incident in November 2001 cannot sue his son’s fraternity for damages because it is a nonprofit, unincorporated organization, Florida’s 3rd District Court of Appeal has ruled. The father, William Meredith of Indianapolis, can only sue the fraternity, Kappa Sigma, for his son’s death by serving the members individually, a three-judge panel unanimously decided on Feb. 12. “Unlike some other jurisdictions that permit an unincorporated association to sue or be sued in its own name, Florida does not have such an enabling statute,” 3rd DCA Judges David Levy, Melvia Green and Juan Ramirez Jr. wrote in the court’s per curiam opinion. “The questions regarding whether these associations should be amenable to suit in Florida is within the province of the Legislature, not the judiciary,” the court said. But the ruling is only a minor setback, said Meredith’s attorney, David Bianchi, a partner at Stewart Tilghman Fox & Bianchi in Miami. The father is still pursuing his wrongful-death suit against two fraternity brothers who allegedly accompanied 18-year-old Chad Meredith the night he drowned while swimming across a pond on the university’s Coral Gables campus known as Lake Osceola. Because the fraternity brothers, Travis Montgomery and David May, were acting in their capacity as fraternity officers, Meredith can still recover damages under Kappa Sigma’s $20 million liability insurance policy by suing them individually, Bianchi said. Montgomery, the local chapter president, and May, the rush chairman, were engaged in hazing when they took the young pledge down to the lake the early morning of Nov. 5, 2001, Bianchi said. “What they were doing was fraternity-related,” he said. “That triggers coverage under the insurance company of the national fraternity.” The fraternity, however, claimed the incident was not a Kappa Sigma-sponsored event and denied allegations of hazing, which is forbidden by UM policy and the fraternity’s own bylaws. Miami-Dade police ruled the death was alcohol-related, and not caused by hazing. “This was not an authorized fraternity activity,” said Ariana Fajardo, an associate at Wilson Elser Moskowitz Edelman & Dicker in Miami who argued the appeal for Kappa Sigma with associate Cynthia Weisz and partner Ricardo Cata. “This was four guys out on a Saturday night drinking who decided to swim Lake Osceola.” In May 2002, William Meredith filed suit in Miami-Dade Circuit Court against Kappa Sigma headquarters in Virginia and Thomas Johnston, the fraternity’s district grand master in Florida. The suit also named Montgomery, 22, of Cary, N.C.; May, 21, of Sarasota and fraternity brother Timothy Williamson, 21, of Larchmont, NY. Meredith sued the defendants on four counts: negligence, breach of fiduciary duty, breach of duty to aid or rescue and default on obligations. The suit sought an unspecified amount in damages. The case against Williamson was dropped after the plaintiff’s investigation determined that he had played a lesser role, Bianchi said. UM was not named as a defendant because the university had taken the precaution of posting a sign forbidding swimming in Lake Osceola and couldn’t be expected to monitor the area 24 hours a day, Bianchi said. According to the lawsuit, the three fraternity brothers plied Chad with alcohol and forced the pledge to swim across the pond during a hurricane warning. While Montgomery and May also went swimming, Williamson waited onshore with towels, according to the suit. Halfway across the pond, Chad began to struggle and screamed for help. Despite his pleas, the three fraternity brothers failed to come to Chad’s rescue, the suit claimed. Police divers later recovered his body. At the time of his death, Chad had a blood-alcohol level of 0.15, nearly double the legal limit in Florida, the lawsuit said. After the lawsuit was served on the fraternity, the organization filed a motion in August 2002 to quash the service. Kappa Sigma argued that it could not be sued because Florida law doesn’t recognize unincorporated fraternal and social organizations as legal partnerships. In September 2002, Miami-Dade Circuit Judge Ronald Friedman denied the motion. But the 3rd DCA reversed Friedman’s ruling, citing a prior 3rd DCA case, Asociacion De Perjudicados Por Inversiones Efectuadas En U.S.A. v. Citibank. In that case, the 3rd DCA ruled in 2000 that a group of foreign investors could not sue the bank for securities fraud because the investor group was a nonprofit organization that did not fall under Florida’s 1995 Revised Uniform Partnership Act. Previously, unincorporated associations were considered partnerships that could only sue or be sued in the names of its individual members. But in 1995, the Legislature gave these partnerships the power to sue or be sued as an individual entity. The Revised Uniform Partnership Act, however, did not extend to nonprofit organizations, the 3rd DCA held. “Florida’s one of the only few states that doesn’t have a law on how to serve not-for-profit organizations,” Fajardo said. “Therefore, it falls under common law and you have to serve each and every individual member.” Meanwhile, Bianchi says he is finished with his depositions in the Meredith case and plans to apply for a trial date within the next three months. “The parents lost their son and no amount of money can compensate for that,” Bianchi said. “They’ll have to live with that for the rest of their lives.”

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