We are pleased to announce Marsha Moses has been selected as Chair of the FDLA’s (Florida Defense Lawyers Association) newly formed Diversity and Inclusion Committee. It makes us proud to see one of our own taking on such an important role, especially since we believe diverse law firms are stronger and more vibrant. The innovation that different backgrounds, cultural perspectives and life experiences bring to a firm’s pool of thought, benefits firm culture and, ultimately, clients. Kudos to FDLA and Marsha for helping to bring more awareness to this important issue.
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Thanks, in large part, to Jennifer Feld of our Tampa office, the 6th Judicial Circuit will soon have a lactation room. It all started with an article Jennifer wrote for the Daily Business Review (DBR) about her experiences as a new mother in trial. “A New Mother’s Guide to Pumping During a Jury Trial” was featured in DBR’s August 2018 publication and sparked tremendous interest. Since then, Jennifer co-authored an article for the St. Petersburg Bar Association’s Paraclete (see page 12) and appeared on Fox 13 News to talk about the importance of having dedicated spaces for new mothers in the legal profession, as well as visitors, such as jurors to the courthouse.

Jennifer has become a pioneer for lactation room awareness, and we are so proud of her going public with her experiences to bring much needed attention to this very important topic.



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We are very proud of Valerie Dondero of our Miami office. On December 20, 2018 the Florida Supreme Court sided with Progressive Select Insurance Company and insurers throughout Florida in striking down Lee Memorial Health System’s Lien statute, finding the law unconstitutional under Article III, section 11 (a) (9). Lee Memorial brought suit against Progressive alleging it impaired the hospital lien when Progressive settled a third party injury claim with the patient. Progressive successfully asserted that the lien statute is a special law that created, enforced and impaired liens based on a private contract, in violation of Article III, section 11 (a) (9). Lee Memorial asserted that its status as a public hospital permitted it to solely enter into public contracts, thereby avoiding the constitutional prohibition. Neither the Second District nor Supreme Court agreed, finding that the nature of the agreement to provide medical care and treatment, rather than the status of one of the parties to the contract, determined whether the contract was private or public.
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Valerie A. Dondero is a shareholder in Kubicki Draper’s Miami office and has been with the firm for seven of her twenty-eight years of practice. A native of West Chester, Pennsylvania, Valerie attended Immaculata University just outside of Philadelphia. After obtaining her bachelor’s degree, Valerie obtained her Juris Doctor at St. Thomas University School of Law.

Prior to joining the Firm, Valerie was an equity partner at a South Florida firm and served as the Chair of Property and Casualty Claims, where she honed her skills as a litigator and coverage attorney.

From a young age, Valerie knew she wanted to practice law in large part because she desired to be in a position where she would be able to protect and help others. After twenty-eight years, Valerie still holds true to those same principles of fairness and justice for her clients.

In addition to her desire to help others and achieve the fairest result, Valerie’s passion for the law comes through in her embracing the intellectual challenges she deals with every day. In her coverage-based work, Valerie “lives” with a file from start to finish, analyzing issues from the pre-suit phase to the trial, appellate, and enforcement phases. Valerie’s wide-ranging experience has taken her to the Florida Supreme Court where she will be pressing forward with a challenge to the constitutionality of a Lee County hospital lien ordinance.

Valerie is lucky in that she has found not only a life partner in her husband, George, but also a law partner who she can use as a sounding board. When they are not practicing, Valerie and George enjoy being with their family, including his two sons, their daughter, Juliet, and their grandchildren. Valerie and her family also enjoy being on the water and are involved in the Coconut Grove Sailing Club, a callback to Valerie’s days as a competitive swimmer.

Whether it’s tackling a complicated legal issue for a client, providing mentorship to the lawyers she works with, or focusing on her family, Valerie prides herself on being the kind of person that people feel they can come to for support, and it is what makes her such a strong asset to the firm.

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We are pleased to announce we have been selected as a Tier 1 Metropolitan firm in U.S. News and Best Lawyers’ 2019 Edition of "Best Law Firms." Our Ft. Lauderdale office was recognized in Real Estate Law and our West Palm Beach office in Personal Injury Litigation – Defendants.
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We are pleased to share that Stuart Poage, of theTallahassee office, has been admitted to the American Arbitration Association’s Construction Arbitration Panel. Stuart is a board certified construction attorney and is available to handle construction arbitrations throughout Florida and the southern parts of Georgia.

AAA panels comprise distinguished judges as well as leaders in the legal and business communities with industry-specific knowledge and expertise. Arbitrators are required to adhere to Codes of Ethics developed by the AAA and the American Bar Association (ABA). For assistance, please contact Stuart: sp@kubickidraper.com.



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The Florida Supreme Court has held in Delisle v. Crane Co., released on October 15, 2018, that the Florida Legislature's attempt to adopt the Daubert standard for admission of expert testimony as part of the Florida Evidence Code, in § 90.702, Fla. Stat., is an unconstitutional infringement of the supreme court's power to determine matters of practice and procedure. The Florida Constitution provides the Florida Supreme Court with exclusive authority to "adopt rules for the practice and procedure in all courts," which the Florida Legislature can only repeal by "general law enacted by two-thirds vote of the membership of each house of the legislature."

As pointed out in the decision, the legislative vote to amend § 90.702, Fla. Stat. to adopt the Daubert standard did not meet this requirement in the Florida House, although it did in the Florida Senate. The Delisle court has concluded that although the legislature purported to pronounce Florida public policy through its adoption of Daubert as part of the Florida Evidence Code, it could not repeal, by a simple majority vote, the procedural rule adopted by the Florida Supreme Court in its prior case law, which had adopted and reaffirmed the Frye standard for admissibility of expert testimony. Thus, in Delisle, the Florida Supreme Court again reaffirmed that Frye, not Daubert, is the appropriate test to be applied in the Florida courts.

In light of Delisle, declaring § 90.702, Fla Stat. unconstitutional, and finding the statute not to address substantive rights, the legislature's enactment of Daubert will be deemed null and void from the outset and will no longer apply in Florida.

If you have any questions or would like to discuss the effect of the Delisle decision on your pending claims, please contact us at: info@kubickidraper.com.

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We hope everyone in Hurricane Michael's path weathered the storm safely.

Our Pensacola and Talahassee offices have reopened.




We have set up a help center for our clients to address storm related issues. For claims assistance and/or questions, please contact us at: StormHelp@KubickiDraper.com.
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On October 4, 2018, in Allen v. Nunez, the Florida Supreme Court issued an opinion concerning proposals for settlement, which may be helpful in determining how best to phrase and consider proposals directed at multiple parties.

In the underlying matter, the plaintiff filed a lawsuit against both the driver and the owner of a vehicle that collided with his truck, claiming damages for the cost of repairs, the truck’s post-repair diminution in value, and the loss of use of the truck.

The plaintiff subsequently served proposals for settlement in the amount of $20,000.00 to each defendant. The proposals contained identical language, except for the name to whom the proposal was directed. One paragraph in each of the proposals for settlement stated it was “made for the purpose of settling all claims made in this case by Plaintiff … against [D]efendant[.]” Neither defendant accepted the plaintiff’s proposal for settlement.

After obtaining a final judgment for $29,785.97, the plaintiff sought to recover his attorney’s fees. The defendants moved to strike the plaintiff’s proposals for settlement, arguing they were ambiguous since it was unclear whether the acceptance and payment by one defendant of the $20,000.00 sum would have resolved the case against one or both of the defendants. The trial court ruled in the plaintiff’s favor. However, Florida’s Fifth District Court of Appeals found the proposals for settlement to be ambiguous and, therefore, unenforceable.

The Florida Supreme Court overruled the Fifth District, finding that the plaintiff’s proposals for settlement were unambiguous and enforceable for several reasons. Specifically, since each proposal for settlement used the singular term “Plaintiff,” and indicated the defendant to whom it was directed, the Court ruled that the only reasonable interpretation was that each proposal for settlement affected only those parties named.

In light of the Allen decision, proposals for settlement served by a plaintiff in a case involving multiple defendants should be carefully scrutinized. Unless the language of the specific proposal for settlement states otherwise, the acceptance of a proposal for settlement issued by a plaintiff to only one defendant in a case involving multiple defendants may mean that all of the plaintiff’s claimed damages against the other defendant survive. In other words, acceptance of the proposal for settlement may not resolve the entire matter.

Have a question about this opinion? Contact us at info@kubickidraper.com.



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HARVEY V. GEICO GEN. INS. CO., NO.S17-85 (FLA. SEPT. 20, 2018)

Summary of the Proceedings

In a 4-3 decision, authored by Justice Quince, the Florida Supreme Court reinstated a judgment for 9.2 million entered in favor of GEICO’s insured, John Harvey. It was based on a special jury verdict finding GEICO acted in bad faith in handling a wrongful death claim against Harvey. Harvey was involved in an auto accident on August 8, 2006 with 51 year-old John Potts who died as a result of the accident, leaving his wife and three children as survivors.

Plaintiff’s counsel rejected GEICO’s tender of Harvey’s $100,000 liability limits. A judgment in favor of the Estate was entered against GEICO’s insured, Harvey, for 8.7 million. Harvey subsequently pursued a bad faith action against GEICO. The bad faith action went to trial, and GEICO moved for directed verdict on the ground there was insufficient evidence to support the bad faith claim. The trial court denied the motion and entered a final judgment for 9.2 million in damages. On appeal, the Fourth District sided with GEICO and reversed the judgment, finding the trial court erred in denying GEICO’s Motion for Directed Verdict as there was insufficient evidence to support the bad faith claim. GEICO Gen. Ins. Co. v. Harvey, 208 So. 3d 810,812 (Fla. 4th DCA 2017).

The Supreme Court Opinion

On “conflict” discretionary review, the supreme court quashed the Fourth District decision on the ground that it failed to properly apply the directed verdict standard and misapplied the supreme court precedent in Boston Old Colony Insurance. Co. v. Gutierrez, 386 So. 2d 783 (Fla. 1980) and Berges v. Infinity Insurance Co., 896 So. 2d 665 (Fla. 2004) on fiduciary duties of insurance companies against their insureds. The Court also concluded that the Fourth District misapplied the supreme court’s precedent when it stated that an insurer is not liable for bad faith “where the insured’s own actions or inactions …at least in part” caused the excess judgment. The supreme court also found that the Fourth District “also relied, in part, on nonbinding federal cases that cannot be reconciled with our clear precedent.”

Summary of Opinion

A comprehensive description of the facts resulting in the 9.2 million dollar bad faith verdict reinstated by the supreme court outcome are extensively addressed below. However, in case you might want to cut to the chase, the major issue in many people’s minds is whether this case created a much lower “negligence standard” applicable to evaluate claims’ handling in bad faith claims.

The supreme court was very critical of the Fourth District’s reliance on a federal 11th Circuit Court of Appeals decision addressing Florida Bad Faith law and applied a much higher standard in proving an insurer acted in bad faith in failing to settle a claim against its insured. Specifically, the supreme court took issue with the Fourth District’s statement that “negligence alone is insufficient to prove bad faith.” In its defense of this statement the supreme court quoted from its Boston Old Colony case: “While it is true that negligence is not the standard, we made clear in Boston Old Colony that because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.” 386 So. 2d at 785.

Here GEICO tendered its policy limits without a demand within 9 days unconditionally. However, 4 days after the accident, an employee of the Estate, on behalf if its counsel, called the GEICO adjuster and advised that they needed a recorded statement of the insured to determine if he had any assets, if he was in the course and scope of his employment or had any other insurance. At that time, the inexperienced adjuster declined the statement without talking with the insured. After receiving the policy limits, the Estate’s attorney called the GEICO adjuster and explained what his employee already explained--that a recorded statement of the insured was needed and why. The lawyer for the Estate followed up with a letter received by the adjuster on August 31st which again contained the 3 reasons why a recorded statement was needed. The Estate’s lawyer’s letter also stated that the adjuster was unable to advise him whether the insured would give a recorded statement.

The adjuster faxed the letter that day to the insured who learned for the first time that his recorded statement had been requested. The insured was agitated because he could not meet with his accountant until August 5 and asked the adjuster how they could let the Estate’s attorney know that information. The insured wanted to make sure the Estate’s lawyer knew he was cooperating. The adjuster was instructed by his manager to let the estate’s lawyer know immediately the circumstances of the insured, but the adjuster failed to follow through. There was no additional contact with the Estate’s office. About a month after the Estate’s office first asked for a recorded statement, the Estate’s lawyer returned the check and filed the wrongful death action.

The Effect of the Opinion on Future Claims and Litigation

Technically, in our opinion, the decision did not change Florida state law on bad faith as the statements relating to negligence are quoted from the seminal Boston Old Colony case. But the opinion is definitely notice to insurers to move faster than the speed of light when they receive a serious case with low policy limits. The opinion contains significant facts showing the insurer’s failure to meet the good faith duty of handling a serious claim. In that respect the result is not surprising.

The opinion recognizes that the burden for the entry of a summary judgment in federal court is easier to meet than in state court. Nevertheless, the opinion could very well have a chilling effect and reduce the number of summary judgments entered for insurers in bad faith cases litigated in federal court. Under federal law, the federal courts apply Florida substantive law in diversity of citizenship cases. The decision makes it almost impossible to obtain a ruling as a matter of law in an insurer’s favor.

For those keenly interested in the case here is a lengthy discussion of the facts which resulted in the bad faith verdict.

1. The accident and claim were reported to GEICO the day of the accident and was assigned to a claims adjuster.
2. Two days later GEICO determined its insured was at fault and knew there was “significant financial exposure” to its insured because coverage was only $100,000 and Potts died with survivors. One day later the adjuster sent Harvey a letter which advised the claim could exceed his policy limits and also advised Harvey he had the right to hire his own attorney.
3. Six days after the accident, Ms. Tejada, an employee of the attorney representing the Potts’ Estate, called the GEICO adjuster and requested a recorded statement from Harvey. Tejada explained the statement was necessary to determine “the extent of his assets, whether he had an insurance and whether he was in the scope of his employment at the time of the accident.” Importantly, the adjuster did not immediately convey the request to Harvey, and Tejada said the adjuster denied the request for a recorded statement.
4. Nine days after the accident, GEICO tendered the full policy limits to the Estate’s attorney with a release and affidavit of coverage. The Estate’s attorney wrote the adjuster a letter in response acknowledging receipt of the check and the adjuster’s refusal to make Harvey available for a statement. The adjuster received the letter on August 31 and faxed it to Harvey who learned for the first time that his statement had been requested. The same day, the adjuster contacted the Estate’s attorney about the recorded statement. After the conversation, the Estate’s attorney confirmed the conversation and that the adjuster wanted to know why the statement was needed. The letter responded that it was for “ the same reason Ms. Tejada outlined previously as well as that referenced in my recent letter. We want to determine what other assets or coverage might be available to cover this incident.” The Estate’s attorney also noted that the adjuster was unable to confirm that Harvey would be available for at statement. The adjuster did not respond or communicate with the lawyer for the Estate about the letter.
5. On Sept. 1, Harvey called the adjuster to discuss the letter and advised him he planned to meet with the attorney he had hired at the adjuster’s suggestion to discuss his financial affairs, but his attorney was not available until September 5. The adjuster documented the call which expressed the insured’s concern that the attorney for the Estate would not think they were acting fast enough and asked what we can do to let the claimant’s lawyer know we are working on this. The adjuster noted that he told the insured the matter would be discussed with management and he would get back to him. The insured requested that he be faxed any a copy of any response before it was sent by GEICO. The adjuster’s supervisor instructed the adjuster to relay Harvey’s message to the Estate’s counsel immediately, but the adjuster never did. The adjuster never got back to the insured.
6. Approximately one month after Tejada’s first request for a statement, the Estate returned GEICO’s check and filed the wrongful death suit. After the final judgment was entered, the bad faith suit was pursued. The Estate’s lawyer testified he never received any communication from GEICO after his August 31st letter. GEICO’s adjuster testified that the request for the information was reasonable, and plaintiffs’ attorneys asked for that information “all the time.” GEICO’s expert testified the information was needed by the Estate’s attorney to properly advise the estate regarding the settlement. The Estate’s lawyer testified that if he knew that Harvey’s only asset was a business account worth about $85,000, he would have advised the Estate to accept the policy limits. The wife of Mr. Potts testified she would have accepted the policy limits if the Estate’s counsel recommended that she settle.
7. A bad faith expert testified that a serious claim such as this one requires “a sense of urgency” by the insurer. He also testified the adjuster should have relayed to the estate’s counsel that Harvey had retained counsel, as this would have facilitated the recorded statement. Because GEICO was handling the claim Harvey could not contact the estate’s attorney directly.
8. In addition, the evidence showed the adjuster had a history of struggling to manage her files, and, among other things, her personnel file also showed she had “communication failures.” Her performance review from the year before the accident stated that her “productivity numbers fell below average…there is now exposure to our insured and to GEICO for extra contractual damage…[and she ] could use help with her organizational skills, filtering her emails, along with organizing her desk.”

Additional Discussion by the Court in the Opinion

The supreme court stated GEICO knew “this was a case of catastrophic damages” but “failed to act as if the financial exposure to Harvey was a ‘ticking financial time bomb.’” Relying on Boston Old Colony, the Court stated the evidence shows “GEICO completely dropped the ball” in failing to fulfill its obligation to Harvey to “use the same degree of care and diligence as a person of ordinary care and prudence should exercise in management of his own business.” “[H]ad GEICO acted ‘with due regard’ for Harvey’s interests, the excess judgment could have been prevented.” The supreme court was critical of and rejected the Fourth District’s reliance on a federal 11th Circuit Court of Appeals opinion addressing Florida bad faith law which applied a much higher standard in proving an insurer acted in bad faith in failing to settle a claim against its insured. While reaffirming its Berges decision--“there must be a causal connection between the damages claimed and the insurer’s bad faith, the supreme court rejected the Fourth District’s statement that an insurer cannot be found liable for bad faith where the excess judgment was caused in part by the insured. In contrast, Berges held “the focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured.”

Justice Pariente, Lewis and Labarga concurred (joined in with) Justice Quince’s opinion. Two dissenting opinions were authored by Chief Judge Chief Judge Canady and Judge Polston. Judge Lawson concurred with the two dissenting opinions. Justice Quince Pariente and Lewis retire from the supreme court in January.

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We are pleased to announce Valerie Dondero and Nicole Wulwick, of our Miami office, will be presenting “Taking the Winning Deposition” at the American Inns of Court (Spellman-Hoeveler Chapter) Bench & Bar Conference on March 1, 2019. The conference will take place at the Hyatt Regency Miami and will be attended by federal and state judges and the top attorneys across Florida. For more information, please visit: https://www.eventbrite.com/e/bench-bar-conference-tickets-51945221556.
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Join Alexandra Paez, Rebecca Brock, and Laurie Adams at the Palm Beach County Bar Association’s Bench Bar Conference on February 22nd!

Our team will be participating in two sessions at this year’s conference focusing on “Breaking Barriers and Sharing Solutions.”

Alexandra will co-chair, and Rebecca will moderate, a session on hot topics in personal injury. The esteemed panel for this session includes Judge Rowe, Judge Nutt, Judge Keyser, Judge Gillen, Judge Gross, and Judge Artau. Together they will cover everything from pre-trial and expert discovery to pre-trial disclosures, and voir dire.

Alexandra will also co-chair a panel Laurie is a part of along with Sean Dominick and Judge Sasser. They will discuss bad faith and the recent Harvey v. GEICO opinion, as well as first-party property considerations, and ethical considerations, dilatory tactics, and compliance with local rules.

For more information and/or to register, please visit: apps.palmbeachbar.org/Bench-Bar-Conference.aspx

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Charles Watkins of our Miami office proudly awarded $10,900 in scholarship funds to worthy students during Pioneer Community Church’s annual celebration honoring graduates. As the Chair of the Kathleen B. Watkins Scholarship Fund, every year, Charles continues his mother’s legacy and awards qualified students funds to assist them in obtaining a college degree. Charles, who is also an Equity Partner and the Chief Diversity Officer of our firm, strongly believes in giving back to the communities in which we live and work, and this event is just one of the many ways in which he commits to do so.


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We are proud to have once again sponsored and participated in Florida Insurance Fraud Education Committee’s (FIFEC) Annual Conference in Orlando, Florida. Several of our attorneys presented alongside insurance industry professionals and law enforcement members in an effort to continue the ongoing fight against all forms of insurance fraud. Our team’s topics were as follows:


If you have any questions or would like more information about any of the topics, please contact one of our presenters above.

We look forward to participating in and hopefully seeing you at this great event next year!



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We are pleased to once again sponsor CLM’s Annual Conference. The conference is set for March 14-16, 2018 in Houston, TX and Charles Watkins and Caryn Bellus from our Miami office will be in attendance.

Charles is slated to present on March 15 with Jim Everett of Everett Cash Mutual Insurance Group and James Martin of Carfax. They will be discussing issues attendant to the overall management of auto total loss claims in catastrophic situations. Issues to be discussed include gaining knowledge of exposure pre-CAT, claim resolution options, referral flags for SIU, and the staging of SIU to handle them. The panel will also address legal issues including fair claim handling practices, Diminished Value on non total losses, fraud investigation assistance, and prosecution including fraud rings. Participants are encouraged to offer ideas, solutions, and examples of utilizing new technology and data to solve issues relative to these areas.

For more information, please visit: 2018 CLM Annual Conference.



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We proudly support and celebrate the success and contributions of women in the construction industry. Michelle Krone, of our Ft. Myers office, took part in celebrating Women in Construction (WIC) Week by presenting a session on behalf of the National Association of Women In Construction. She offered guests a legal perspective on issues related to the construction industry.



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Harold Saul and Marsha Moses, of our Tampa office, participated in the Hillsborough County Bar Association’s Diversity Networking event at the Chester H. Ferguson Law Center. The event helps connect minority law students with attorneys, judges and members of local legal organizations in a casual, friendly and low-pressure environment. Harold and Marsha were able to meet several eager law students, many local judges, and special guest Florida Supreme Court Justice C. Alan Lawson. Kubicki Draper is proud to be a part of this great event centered around diversity.




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Miami shareholders Valerie Dondero and Nicole Wulwick joined several Miami-Dade County Judges and young female attorneys at the Florida Association of Women Lawyers Trial Skills Advocacy workshop. During this two day event Nicole sharpened her trial skills working with several judges on opening statements, cross examination of lay and expert witnesses and closing arguments. Valerie was invited to join the Judges panel and provided her experience and perspectives on trying cases, developing the theme to the trial and effective closing arguments. The workshop was a huge success and both Valerie and Nicole were highly complimented by our Miami judiciary.


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We were very happy to sponsor and have many of our attorneys attend the Annual Kozyak Minority Mentoring Picnic at Metro Zoo recently. As always, the picnic was well attended by many judges and lawyers and provided networking opportunities to minority and women law students from every school in Florida. Our team met with dozens of students, giving them career advice, providing them information about our practices and directing them to our internship program.

Kozyak Minority Mentoring Foundation was created with the vision of building an effective pathway to diversity in the legal profession by providing opportunities and support to minority and women law students through mentoring programs, networking and fellowships. The Foundation has close ties to the Cuban-American Bar Association (“CABA”), the Florida Association of Women Lawyers (“FAWL”), Haitian Lawyers, Caribbean Lawyers Association, the Gay and Lesbian Lawyers Association, Florida Muslim Lawyers, the National Hispanic Bar Association and many other voluntary bar associations.

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IN THIS ISSUE: 

• KD in the Community
• Reservation for Exploitation: Confronting Human Trafficking in the Hospitality Industry
• A New Mother's Guide to Pumping During a Jury Trial
• Living Through the Storm
• Appellate Results
• Spotlight on: Valerie Dondero
• Trials, Motions, Mediations, Results
• 2019 KD Best Lawyers
• Presentations & Speaking Engagements
• News & Annoucements

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IN THIS ISSUE: 

• Spotlight on: Michael C. Clarke
• KD in the Community
• Allocation of the Burden of Proof at Trial Under a Special Form Homeowners Insurance Policy
• Presentations & Speaking Engagements
• KD Super Lawyers 2018
• Recent Results: Appellate, Trials, Motions, Mediations
• News & Annoucements
• New Additions
• Annoucements

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IN THIS ISSUE: 

• KD in the Community
• New Additions
• The Recent Development of Letters of Protection
• KD Recognized by South Florida Legal Guide
• A Painless Guide to Settling the Claims of Minors in Florida
• Recent Results: Appellate
• Recent Results: Trials, Motions, Mediations
• Presentations and Speaking Engagements
• Annoucements and News

 

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Angela C. Flowers, of the Ocala office, obtained reversal, on certiorari to the Fifth District Court of Appeals, of a trial court order granting Plaintiff leave to amend her complaint to add a claim for punitive damages.

Plaintiff is a developmentally disabled adult who is a client of a non-profit corporation which operates a facility providing day-programs including training, work planning, school services and art programs. Plaintiff brought suit alleging negligent conduct and statutory violation of her individual rights by Defendant in failing to protect and oversee her care while in its custody. Plaintiff asserted the corporate Defendant violated her rights through its agents, servants and employees in failing to protect her from the acts of another client. Nearly four years after bringing suit, Plaintiff sought leave to amend to include a claim for punitive damages. The trial court granted the motion despite Defendant’s arguments that Plaintiff failed to meet the legal standard for asserting a punitive damages claim. On appeal, the Fifth District agreed and reversed noting that the trial court departed from the essential requirements of law by applying the wrong legal standard when it evaluated the punitive damages claim. The court further affirmed that a punitive damages claim against a corporate defendant is governed by the standard established in Schropp v. Crown Eurocars, Inc., 654 So. 2d 1158 (Fla. 1995), which requires a showing of willful and wanton misconduct on the part of a corporate officer or managing agent.

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Barbara Fox and Caryn L. Bellus, of the Miami office, obtained an order from the Third District Court of Appeals dismissing a writ of certiorari in a construction defect lawsuit.

A writ was being sought by the appellant condominium association following the granting of partial summary judgment in our client’s favor. As a result of summary judgment, the majority of the associations claims were disposed, which is why appellants sought a writ to reverse summary judgment. Barbara and Caryn argued that because there was no irreparable harm, and there existed viable alternatives for the association to protect their interests (e.g., appeal at end of case, claims against other parties, etc.), such that certiorari should not be had. Following full briefing and oral argument, where at least one of the appellate judges did not appear to be siding with our arguments, the panel issued a unanimous order dismissing for lack of jurisdiction. With the writ dismissed and summary judgment remaining in effect, the remaining claims are likely worth less than the fees spent in seeking the writ of certiorari.

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Betsy E. Gallagher and Michael Clarke, of the Tampa office obtained an affirmance of a summary final judgment in an action for PIP benefits and an award of appellate attorney’s fees conditioned on the enforcement of the proposal for settlement. The issue before the three-judge 17th Judicial Circuit panel was whether the carrier properly limited PIP benefits to $2,500 under Florida’s No-Fault Law as there was no timely, qualified medical opinion that the insured sustained an emergency medical condition (EMC) before Provider’s demand letter was mailed and before suit was filed. The panel found that the provider presented an EMC opinion after suit was filed, which was too late.
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Michael Balducci and Jennifer Levine Feld, of the West Palm Beach office, received an extremely favorable jury verdict in Palm Beach County on a premises liability case where the plaintiff tripped over a camouflaged rusted, metal stake in a landscaped median that should have been removed by the defendant years before. Nonetheless, they were able to pin 35 percent comparative fault on the plaintiff by showing she was inattentive while traversing the area. As to damages, the plaintiff had serious shoulder and ankle surgeries along with a cervical fusion, with close to $300,000 in medical bills. The case was complicated by the fact that the plaintiff had a severely developmentally disabled child. Plaintiff sought additional damages for the remainder of her life expectancy in order to care for the child since her accident-related physical limitations allegedly prevented her from doing so. Between the two parties, ten experts testified at trial. The jury adopted Mike and Jen’s no causation defense based on some prior complaints, delays in treatment and other causation issues, and only awarded $50,000, which was reduced to $32,500 with the comparative fault. A very hefty proposal of settlement had been offered of $850,000 which was triggered, so the final judgment will be in the defendant’s favor for around six figures.
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Douglas F. Miller, of the Pensacola office, obtained a defense verdict in Santa Rosa County. Doug was representing a site contractor who had been hired to work on a new subdivision to clear land and dispose of debris. It was undisputed that debris from the land clearing had been buried on site, making a complete defense verdict unlikely. The developer was offered $50,000 at mediation and, at trial, boarded $600,000 in hard damages. After a four day trial, the jury came back with a verdict of $27,000.
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Jeremy A. Chevres, of the Ft. Myers office, obtained summary judgment in a case involving the death of a 21-year-old husband and father of a 6 day old infant. The deceased was crushed while working under a bulldozer where the supports failed. Jeremy was able to keep the focus of the Court on the case law and legal burden in the face of inflammatory evidence. Prior to the hearing, Jeremy laid the groundwork for his win by defeating an attempt to amend the complaint for punitive damages and securing an order denying the amendment with prejudice. As the Court noted, negligence and even gross negligence was ample and proven but did not rise to the conduct required under the statute for employer liability under the virtual certainty standard.
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Stuart Poage, of the Tallahassee office, successfully defended a matter wherein Plaintiff alleged a roadway construction company’s industrial dump truck ran him off the road causing an accident which left Plaintiff paralyzed with more than $1.5 million in past medical expenses. Plaintiff originally reported the accident as a single vehicle accident but later filed formal litigation alleging negligence against a roadway construction company. Investigation and discovery revealed that no company trucks were present, that no witness testimony supported the allegations, that Plaintiff was under the influence of drugs at the time of the accident, and that Plaintiff threatened suicide prior to the accident. A motion for fraud was filed based largely upon misstatements made by Plaintiff during his deposition. The motion was granted and a consent judgment for fee recovery was executed.
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Stuart Poage, of the Tallahassee office, secured a Dismissal with Prejudice in Leon County in a case where the plaintiff sued a State of Florida agency seeking $850,000 in alleged damages. Stuart litigated and argued that Plaintiff failed to meet the statutory pre-suit notice requirement as required by Section 768.28(6), Florida Statutes. Despite a properly filed and served formal operative complaint, the circuit court judge upheld the strict statutory requirements and granted the dismissal with prejudice as the applicable statute of limitation had already expired.
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Jonathan O. Aihie, of the Miami office, successfully resolved a property damage claim. Plaintiff alleged that she suffered a covered loss stemming from a storm-created roof leak. Jonathan requested a re-inspection with a roofer/GC to determine the cause and origin of the damage. The roofer opined that the damage was not sudden and accidental, but rather from long term wear and tear. Afterwards, Jonathan deposed the insured to obtain more information about the timeframe of the damages. The insured testified that a tree had been growing over her roof for an extended period of time, which caused the roof damage. As such, Jonathan immediately filed a motion for summary judgment based on the fact that there was no peril-created opening to trigger coverage under the policy. Jonathan also filed an inclusive $500 Proposal for Settlement to reduce the carrier’s fee exposure. Due to Jonathan’s investigation and aggressive motion practice, opposing counsel informed Jonathan of plaintiff’s intention to accept the Proposal a few days before the Motion for Summary Judgment hearing.
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Sarah R. Goldberg, of the Miami office, obtained a voluntary dismissal with prejudice in a denied roof leak claim following favorable testimony from a Plaintiff. During Plaintiff’s deposition, Sarah secured testimony from Plaintiff that he did not have a sudden leak on the reported date of loss in 2016, but rather his roof had been leaking since his prior roof claim in 2012. Following the deposition, Plaintiff reached out to settle the case for $20,000.00. Plaintiff’s counsel said his client was “confused” when testifying that there was an ongoing leak at deposition because the underwriting inspection report completed in 2015 stated that the roof was in good condition and had 5 useful years left. Sarah had multiple phone conferences with Plaintiff’s counsel informing him that there was no basis to argue that his client was “confused” during his deposition nor did the underwriting inspection report do anything to meet Plaintiff’s burden to prove that wind caused an opening in the roof. Recognizing the weaknesses of his case, Plaintiff’s counsel filed the voluntary dismissal on the eve of Sarah’s motion for summary judgment.
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