November 9, 2017
After this "apprenticeship," Blake arrived at Kubicki Draper last year toting an S&P 500 client and a specialty in negligent security and premises liability. Properly defending negligent security cases requires a certain level of expertise derived only in the trenches, and Blake has been involved in a great number of very significant such cases.
Blake’s negligent security cases run the gamut from HUD subsidized properties to high-end luxury residences.
There is a trend in the area of negligent security where certain potentially damaging information obtained in key manager depositions can be recycled and shared among plaintiff firms, and then used to the detriment of institutional property owners elsewhere. Accordingly, Blake believes that every deposition matters in these cases as each has potentially wider ramifications.
Blake cares deeply, not just about the result in a given case, but also how a high-stakes litigation experience might affect a business or an insurance carrier. She takes her cases and her clients very seriously and personally.
One lawyer in our firm was struck recently listening to Blake during a mediation presentation. After listening to opposing counsel portray his client as the "sympathetic plaintiff" against a corporation, Blake deftly put a human face on the defendant corporation. She talked about how that corporation was comprised of people, and was the product of the dreams of successful individuals trying to provide a good service but also trying to do things safely. And she emphasized that her clients should be afforded the same level of respect and compassion as the plaintiff.
Knowing how important compassion can be to decision makers, Blake believes this is a big part of her job as a case approaches trial.
Blake’s clients know they can call her at any time for her assistance. She strongly believes that the key to a successful relationship with her clients starts with excellent customer service. Clients hire her because she makes them believe she will be "all in" with every case she handles.
Blake has learned to never underestimate an issue, or a lawyer, or the impact any piece of evidence might have at trial.
Blake still believes strongly in our jury system, and reminds her clients that - even in the "Wild West" of Southeast Florida - the Plaintiff bears the burden of proof so that, approached correctly, Defendants should remain confident to push forward to a trial absent the ability to reach some other satisfactory result.
November 9, 2017
For more information about GCAIP, please visit: GCAIP.
November 1, 2017
October 27, 2017
In 2011, Lee Memorial Health Systems filed suit against Progressive for impairing its hospital lien when Progressive settled an accident claim without discharging or otherwise settling the hospital's lien for medical services. Progressive asserted that Lee Memorial's statute, codified at 2000-439, which entitled the hospital to sue insurers for the full value of the hospital lien, violated Article III section 11(a)(9) of the Florida Constitution because it was a "special law pertaining to the creation, enforcement, extension and/or impairment of a lien based on a private contract." Progressive further asserted that the lien was a violation of Article I section 10 of the Florida Constitution as an unconstitutional impairment of the insurance contract between the insurer and its insured because the statute allowed the hospital to recover the full value of its lien irrespective of the liability limits afforded under the insurance policies.
On appeal, Lee Memorial sought to avoid the application of the Article III section 11(a)(9) scrutiny by arguing that because it is a public hospital, its contracts with its patients must also be "public contracts" and not "private contracts" as addressed by the constitutional provision. The Appellate court rejected this argument and found that the contract between the hospital and its patient was private in nature because the lien attached to the patient's private assets (his cause of action for injury and damages) rather than to "public assets," citing Mercury Ins Co v. Shands Teaching Hospital, 21 So3d 38 (Fla 1st DCA 2009). The Appellate court also declared the lien statute an unconstitutional impairment of a contract by providing Lee Memorial with the right to seek the full value of the lien amount without regard to the policy limits. The court concluded that "absent bad faith, an insurer's liability is limited to the amount of policy limits."
Several insurers and patients have been sued by Lee Memorial under the provisions of this lien law, however, Progressive and Valerie Dondero’s prevailing arguments at both the trial and appellate levels set the stage to allow insurers to perform their good faith duties to settle claims on behalf of their insureds without also negotiating or settling the hospital liens presented by Lee Memorial Health Systems. This is a significant win for Florida insurers who have been repeatedly sued for hundreds of thousands of dollars in extra contractual damages by Lee Memorial Health Systems.
October 27, 2017
To complicate matters, McCoy relied on the First District in Boatright v. Philip Morris USA Inc., 218 So. 3d 962 (Fla. 2d DCA 2017) (holding that Rule 2.516 does not require e-service of a PFS), whereas Wheaton relied on the Second District in Floyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015) (implying that all service requirements of Rule 2.516 apply to the service of a PFS). Accordingly, for the time being, within the jurisdiction of the First and Third Districts, a PFS must be e-served in accordance with Rule 2.516. But within the jurisdiction of the Second and Fourth Districts, a PFS does not have to be e-served as long as there is notice of its service.
Take note too that the First District, in Boatright, has certified conflict with the Third District’s Wheaton opinion on this issue, and review is pending in the Florida Supreme Court. Since the conflict could ultimately be resolved either way, it might be a good idea to play it safe by e-serving proposals for settlement in all cases no matter the jurisdiction. Also be sure to comply with all other service requirements in Rule 2.516 until the Florida Supreme Court says otherwise.
For questions about the above, please contact Caryn Bellus and/or Brian Ellison.
October 25, 2017
Case Law Update on William Joyce v. Federated National Insurance Company, No. SC16-103 (Fla. Oct. 19, 2017).
On October 19, 2017, the Florida Supreme Court came out with an opinion regarding the award of contingency fee multipliers in first party property disputes, finding that a contingency fee multiplier is not reserved only for “rare” and “exceptional circumstances.” This is a split opinion by the Florida Supreme Court, meaning that this issue is far from resolved.
We anticipate that the Plaintiff’s bar will be using this opinion to justify and substantiate requests for a contingency fee multiplier in cases where the carrier wishes to go to a fee hearing to challenge the reasonableness of the fee requested by a Plaintiff attorney. The opinion sets the stage for a more costly preparation for fee hearings by carriers. As discussed in detail below, the determining factor that led to the Florida Supreme concluding that a contingency fee multiplier of 2 is reasonable in this case, is the finding that there were no other attorneys in the St. Augustine legal market with the requisite skill to represent the insured, Mr. Joyce, other than the attorney he hired. Missing from the opinion is a discussion of how the local legal market is defined. There is no explanation in the opinion as to why Jacksonville, a few mile drive from St. Augustine, is not considered part of the St. Augustine legal market. Furthermore, the majority and the dissent disagree as to whether this case involves complex legal issues.
With the majority of carrier disputes being in the South Florida legal market, with significant numbers of claims also in the Orlando /Central Florida area, the west coast including Naples, Ft. Myers, Tampa/St. Petersburg area and some also in the Panhandle, carriers should be mindful of this opinion and have their fee experts prepared to provide evidence to the trial Judges of the commonality of first party claims and the large volume of attorneys handling these claims who have the skills to properly litigate the case on behalf the insured. Fee experts should be prepared to define the local legal market. Fee experts should be prepared to show the trial Judge that in all these areas of Florida, it is common practice for a first party property Plaintiff attorney to handle hundreds, if not thousands of cases spanning often times, multiple Florida counties. Moreover, fee experts should be able to articulate that the common grounds for a denial of a claim in first party property disputes, to demonstrate that the case does not involve complex legal issues. Insurers should be particularly mindful because with the expected surge of Hurricane Irma litigation in the new year (2018), the plaintiffs bar will be very aggressive to collect fees.
A detailed summary of this opinion follows:
In this case, Mr. Joyce filed a claim for homeowners insurance benefits with his homeowner’s insurer, Federated National Insurance Company (“Federated”). The claim was denied on the basis that Mr. Joyce did not disclose prior claims to Federated made with other homeowners insurance carriers. The omission of previous claims was the basis of the denial. After several months of litigation, the indemnity dispute was settled and Federated stipulated to entitlement to attorney’s fees and costs. Settlement of the indemnity dispute occurred because it was revealed in deposition testimony that the insurance agent had the original paperwork that showed the previous claims were in fact, disclosed. This is somewhat different than the typical denial in first party cases which rely on common policy exclusions, like wear and tear or constant and repeated seepage of water.
The trial Court awarded Mr. Joyce a lodestar figure of $38,150.00 for attorneys fees and costs. The lodestar figure is calculated by multiplying the reasonable hours spent litigating the case by the reasonable hourly rate for attorney’s services. In this case the Court found that 109 hours was the reasonable time spent and multiplied this number by a reasonable hourly rate of $350.00 per hour, for a lodestar figure of $38,150.00. The trial Court also awarded the Plaintiff a multiplier of 2. The lodestar figure was then multiplied by 2, for a total attorney’s fee award following a fee hearing and testimony of fee experts, of $76,300.00. The trial Court concluded that the relevant market required a contingency fee multiplier. Further, the trial Court found that there were few, if any other attorneys in St. Augustine legal market who would take this case, and that this case included difficult policy interpretation and exclusion issues. The findings, based on the text of the opinion, are based largely on testimony from Mr. Joyce’s attorney.
On appeal to the Fifth District Court of Appeal, the Appellate Court reversed the award of the multiplier of 2, finding that the lodestar figure carriers a strong presumption of the reasonable fee, and that a contingency fee multiplier is reserved for “rare” and “exceptional circumstances.” The Appellate Court found the case did not require litigation of complex issues nor was there a shortage of attorneys who could handle the case on behalf of Mr. Joyce. The Third District Court of Appeal previously held in State Farm Florida Insurance Co. v. Alvarez, 175 So. 3d 352 (Fla. 3d DCA 2015), that contingency fee multipliers are reserved for “rare” and “exceptional circumstances.”
The finding of the Appellate Court was appealed to the Florida Supreme Court based on conflict between the Fifth District Court of Appeal’s holding and previous cases on the contingency fee multiplier. The Florida Supreme Court holds that “In short, Quanstrom made clear that trial judges are not required to use a multiplier; but when they do, evidence must be “presented to justify the utilization of a multiplier.” Id. Although the Quanstrom opinion did use the terms “rare” and “extraordinary,” they were not used as a prerequisite to the application of a contingency fee multiplier.” The Florida Supreme Court found that the trial Court’s findings were based on competent testimony and that multipliers are not reserved for “rare” and “exceptional circumstances.” The Supreme Court remanded the case to the Fifth District Court of Appeal to reinstate the trial Court’s attorney’s fee award of $76,300.00.
For more information contact Sarah Goldberg, Esq. at firstname.lastname@example.org or William Bissett, Esq., email@example.com.
October 11, 2017
ABOTA is widely recognized as one of the most prestigious national organizations for trial lawyers. Membership in ABOTA is by invitation only and is limited to a small number of attorneys. Members must possess a wealth of trial experience and uphold the highest standards of integrity, ethics and civility in the legal profession.
October 3, 2017
September 15, 2017
On September 13, 2017, the Florida Office of Emergency Regulation issued an Emergency Order following the State of Emergency issued by Governor Scott due to the destruction of Hurricane Irma.
The aim of the order is to provide standardized requirements that may be applied to insurers as a consequence of the hurricane. Among the requirements that could affect the handling of claims involving Florida residents, property or risk are:
- No insurer may cancel or nonrenew a personal residential or commercial residential insurance policy covering a dwelling located in the state that has been damaged as a result of Hurricane Irma;
- Any time limits imposed on an insured to perform an act or transmit information with respect to a contract of insurance which was to have been performed after September 4, 2017 is tolled until December 3, 2017. This does not relieve a policy holder who has a claim resulting from Hurricane Irma from complying with their obligations to provide information and cooperate with the claims handling process;
- Between September 4, 2017 and October 15, 2017, no insurer shall cancel or nonrenew a policy or contract of insurance or issue a notice of cancellation or nonrenewal or a policy covering a person, property or risk in Florida, except at the written request or agreement of the policy holder;
- All notices of cancellation issued or mailed on or after August 25, 2017 through and including September 3, 2017 covering a person, property or risk in Florida shall be withdrawn and reissued on or after October 15, 2017.
We anticipate that the requirements of the Emergency Order could potentially affect the claims handling process in Florida. Should you have any issues relating to the interpretation or application of this order as it relates to your insuring and claims handling processes, please do not hesitate to contact us at StormHelp@KubickiDraper.com.Continue...
September 13, 2017
Please know the KD family is here for you when you need them. We are confident that together we can get back to work and emerge even stronger than before.
As you begin assessing the damages left behind by Irma, our attorneys and staff throughout the State of Florida are standing by to ease your work load where possible. That said, we have taken the liberty of attaching a claim investigation checklist you may find valuable in ensuring you have documented your claim file sufficiently in the event a claim turns into a lawsuit. Please note we have also included a link to Florida Statute 627.70132 which highlights the statute of limitations notice provision for hurricane claims. See Florida Statute 627.70132.
We welcome the opportunity and look forward to being of service.
StormHelp@KubickiDraper.com for questions and/or claims handling assistance. Continue...