With three storms churning out in the Atlantic Ocean, the Atlantic Hurricane Season’s “peak period” is definitely living up to its reputation. In light of the activity, we’ve gathered some information that may be helpful to Florida insurance professionals during this time.

 

When was the last time you checked your license status?

The Florida Department of Financial Services Bureau of Licensing recommends All Lines adjusters ask themselves the following questions to ensure they are ready before a storm is upon us:
 

• Is your license active?
• Are you self-appointed or appointed by an insurer or other firm?
• Are you compliant with your continuing education requirements? (General, Personal and All Lines Adjusters must have: 5 hours of Law & Ethics Update & 19 hours of Elective credits)
• Has a primary adjuster been designated for your organization?
• Is your contact information up-to-date?
• Are any apprentices licensed and appointed?
• Do you have your Department issued license with you?

 

To check on your Florida license and education status, you can visit: MyProfile or contact AgentLicensing@MyFloridaCFO.com for assistance.

 

What do you do to keep up with the many storm advisories and updates?

Claims Pages, an online reference source for insurance claim professionals, provides helpful tracking information for various storms and weather advisories all in one place. They pull information every 10 minutes from sources like the National Weather Service, the National Oceanic and Atmospheric Administration (NOAA), the United States Geological Survey, and the National Hurricane Center. To view the information gathered, visit: https://www.claimspages.com/stormwatch/.

 

If a storm affects Florida, do you know what one of the most important things to do is when assessing a claim?

Document, document, document. As you assess the damages left behind, it is important to sufficiently document your file in the event a claim turns into a lawsuit. We can provide an Initial Claims Investigation Checklist you may find valuable in ensuring you have properly documented your file.

 

We hope the information provided is helpful. If you are interested in a copy of the Initial Investigation Checklist, need assistance with storm related issues and/or wish to coordinate a complimentary continuing education seminar to ensure you are up to speed with your requirements, please do not hesitate to contact our team at StormHelp@KubickiDraper.com. We are here if you need us and welcome the opportunity to be of service.

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Debbie Bergin passed away on August 5, 2018 in her home in Winter Park, Florida surrounded by family and friends who loved her. She was 48 years old. Debbie battled and survived breast cancer for 9 years before it claimed her.

Debbie had been with the firm for over 10 years. Throughout her time at Kubicki Draper, Debbie fiercely and zealously advocated for her clients, recognizing that every person is entitled to a strong defense. Like with everything she did, when Debbie had a client, she gave them her all. When defending clients in wrongful death cases, it was not unusual for Debbie to spend hours not just discussing the case, but helping her clients deal with and process the stress of litigation.

Just like she lent her support to her clients, Debbie was also a pillar of support not only in the Orlando office, but throughout the firm. Debbie was always there to help her friends and coworkers who were dealing with cancer, deaths in their families, or just the everyday stress of life. Debbie filled the office with laughter and joy, and her passion for living life to the fullest spread to her coworkers. Debbie was also a mentor, who took time out of her day to pass along her knowledge and to encourage the professional growth of young associates. She likewise offered her sound advice and strategies to her partners, colleagues, and peers. Debbie was always ready to debate the merits of any case or defense to achieve a better overall evaluation of the claim.

Most importantly, Debbie set a great example of balancing her career with her love of her family. Debbie is survived by her two children, Alexandra and Nicholas, and her husband, Andrew. Debbie made sure that she was actively involved in her family’s lives.

Debbie loved traveling with her family, being outdoors, boating, skiing, going to the beach, camping, going to concerts and sporting events. For Debbie, life was meant to be lived to the fullest, and she made sure that she led by example.

Although Debbie can never be replaced, her work family will continue to live as she did: fighting fiercely, laughing loudly, and loving deeply.




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We are pleased to announce six KD attorneys were recognized as 2019 "Best Lawyers in America," by the highly-respected "Best Lawyers" peer review guide.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.

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Kubicki Draper is proud to announce the opening of our Seattle, Washington office. We look forward to providing the Pacific Northwest with the same quality and personal service we have provided to our Florida, Alabama, Georgia and Mississippi clients for over 50 years.

Our Seattle office is managed by Steven Rich. Steven is an AV rated litigator and trial attorney with experience in complex and multi-party civil litigation. He has successfully defended his clients against lawsuits on a variety of different issues, including construction defects, catastrophic injury, wrongful death, product liability, toxic torts, and environmental accidents.

 

Seattle Office Contact Information:

Kubicki Draper
800 5th Avenue, Suite 4100
Seattle, WA 98104
Main: 206-453-3030
E-mail: swr@kubickidraper.com Continue...

Michael Clarke is a shareholder in Kubicki Draper’s Tampa office and has been with the Firm for thirteen of his twenty-four years of practice. Born in Albany, New York, Michael attended the State University of New York at Plattsburgh, beginning his career in the law immediately upon graduation as an examiner with the New York Legislative Bill Drafting Commission. While at the LBDC, Michael worked assisting members of the New York State Legislature in drafting legislation to maintain a consistent and constitutional statutory approach with existing New York law.

With all respect to Mark Twain and his quip that “People who love sausage and respect the law should never watch either one being made,” Michael’s experience in the legislative process was different. He decided to attend Stetson University School of Law as a change in scenery after a lifetime in Upstate New York was a necessity.

While at Stetson, Michael’s interest and admiration for the organic process by which the law evolves continued. During law school, he began to focus on the appellate process and a court’s role in establishing the law. As effective (and concise) legal writing is a large part of any successful appellate practitioner, Michael “wrote on” to the Stetson Law Review and in 1993 graduated cum laude. He appreciates the law as a living entity believing in the ability to forecast the future based upon precedent and observable history. The same holds true in life.

Upon graduation, after a thankfully short period of searching for what was then an elusive first job, Michael began his practice on the plaintiffs’ side. In addition to writing briefs from day one, he gained immediate trial practice exposure and experience in a civil courtroom setting.

Participating in trials ranging from premises liability to complex medical malpractice actions, it became apparent that evaluating how “six people in a box” would communally decide a case presented a challenge to every professional with a stake in determining the likelihood of success of their positions and arguments. He also learned the only effective way to help control the ultimate outcome results from proper evaluation, preparation, and preservation. Objectivity is always key. Taking a long game approach developed Michael into a lawyer who appreciates all aspects of claims evaluation, pre-trial practice, trial and appeals, keeping him grounded outside of the Ivory Tower and firmly within the realities produced by the legal marketplace and a client’s bottom line.

Now, with a focus on defense and appellate practice, Michael’s interests include helping his clients coordinate statewide litigation and appellate strategies, providing trial support and trying a case as required. Of particular interest is the pursuit or the defense of attorney’s fees claims both for his clients and as an expert witness. He intends to continue his practice well into the future as his engagement and enthusiasm in becoming the best lawyer possible has not waned.

Michael resides in St. Petersburg spending his free time enjoying everything Florida has to offer – particularly in the Tampa Bay area – and is excited about the opportunities that the growing region presents. His current goal is to create or recognize one near-perfect thing each day. Whether a grill-marked steak prepared to his guest’s exact taste or an artistic recognition of the Steadicam work of Stanley Kubrick, he derives his primary satisfaction from a job well done. If you appreciate his approach to practice with professionalism, feel free to give him a call.
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Every year, Florida Legal Elite™ presents a prestigious list of attorneys chosen for recognition by their peers. We are pleased to announce Betsy E. Gallagher and Kimberly A. Beckwith, of our Tampa office, were selected for inclusion in this year’s Florida Legal Elite™ list published in Florida Trend Magazine. Betsy was recognized for Appellate Practice and Kimberly for Civil Trial. We are very proud of these ladies and congratulate them on their accomplishment.

The entire Legal Elite report can be viewed at Florida Trend.

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We are honored to have several partners recognized and selected for inclusion in the 2018 Best Lawyers® “Women in the Law,” Summer Business Edition.

Caryn Bellus of our Miami office, Angela Flowers of our Ocala office and Betsy Gallagher of our Tampa office were recognized for their Appellate Practice. Laurie J. Adams of our West Palm Beach office was recognized for Personal Injury Litigation and Jane C. Rankin of our Ft. Lauderdale office was selected for her work in Real Estate Law. We are extremely proud of our their dedication, integrity and commitment to excellence in the work they do.

You may view the entire publication here: Best Lawyers Business Edition 2018.

ABOUT BEST LAWYERS
Best Lawyers is the oldest and most respected attorney ranking service in the world. For more than 30 years, Best Lawyers has assisted those in need of legal services to identify the attorneys best qualified to represent them in distant jurisdictions or unfamiliar specialties. Best Lawyers lists are published in leading local, regional, and national publications across the globe.

Best Lawyers® - Methodology


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We are pleased to share the following list of attorneys who were selected for inclusion in this year’s list of Florida Super Lawyers and Rising Stars.

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Case Law Update: Hicks v. American Integrity Insurance Company of Florida, 2018 WL 1020272 (Fla. 5th DCA Feb. 23, 2018).

In this case, the Fifth District Court of Appeal explored the exclusion for constant and repeated seepage of water in the American Integrity Homeowner's Insurance Policy. Insurance Companies should consider this ruling in framing a proper defense to a case in which a water leak has been occurring at the insured property for a period of time. The case is a good reminder that the insured’s initial burden is low. The insured must only prove that a direct, physical loss occurred to the property during the policy period. The insured does not have the burden to prove that a loss occurred on a specific date or during a specific period of time, only that a direct, physical loss occurred during the policy period. The burden then shifts to the insurer to prove an exclusion to coverage.

In this case, the policy language excludes coverage for constant and repeated seepage or leakage of water which occurs over a period of 14 or more days. This exclusionary language is common to most homeowner’s insurance policies. Per the Court's ruling, even if there is evidence that a leak has been going for a period of 14 days or more, damages resulting from the first 13 days of water release are covered under the insurance policy. Below is detailed summary of the Appellate Court's ruling:

The American Integrity policy issued to insured Hicks was an All-Risk policy. Mr. Hicks' water supply line began leaking in September, 2012, while he was out of town. When he returned at the end of October, 2012, the supply line was leaking heavily, releasing almost 1,000 gallons of water a day. The claim submitted by Mr. Hicks was denied by American Integrity based on the provision of the policy which provides as follows:

We do not insure...for loss...[c]aused by...[c]onstant or repeated seepage of leakage of water...over a period of 14 or more days.”

American Integrity filed a motion a summary judgment, arguing that because the record evidence reflected that the leak was going on for a period exceeding 14 days, the claim was unambiguously excluded under the terms of the policy. In response, Mr. Hicks filed his own motions for summary judgment, arguing that his property sustained a direct, physical loss during the policy period, that the damages arising from the first 13 days of the leak are covered under the policy and that the total damages for the first 13 days of the leak totaled $40,926.77 (based on an expert opinion). At the trial level, American Integrity's motion for summary judgment was granted because the Court was unsure, based on the facts presented that it could make the determination that the loss from the first 13 days was covered.

The Appellate Court here reversed the grant of summary judgment in favor of American Integrity, finding that the policy language at issue does not unambiguously "exclude(d) losses caused by constant or repeated leakage or seepage over a period of thirteen days or less." The Court also found that it was unambiguously clear that "a provision excluding losses caused by constant leakage of water over a period of fourteen or more days likewise excludes losses caused by constant leakage of water over a period of less than fourteen days. Because there is ambiguity in the policy language, the language most be construed in the light most favorable to the insured. In the light most favorable to the insured, coverage exists for damages caused by the first 13 days of the leak.

The Appellate Court therefore, reversed summary judgment in favor of American Integrity and remanded with instructions for the trial Court to enter partial summary judgment in favor insured on the issue of damages from the first 13 days of the loss being covered by the policy. Therefore, the issue at trial would be the damages arising from days 1-13 of the water leak. The Court also states that the insurer has the burden at trial to prove that a particular loss was sustained after the 13th day and therefore, not covered under the exclusionary provision.

Thoughts Going Forward

Insurers should consider re-writing the “Constant and Repeated Leakage and Seepage” provision, making it clear that ALL DAMAGE first presented in a claim beyond 14 days after the date of loss are simply not covered. However, if a claim is presented within the first 13 days it is not considered “repeated leakage and seepage.” (More or Less “All water losses need to be reported within the first 13 days or else coverage will not apply unless good cause can be shown otherwise.")

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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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We are pleased to announce Caryn L. Bellus will be participating on a panel at the American Bar Association’s 26th Annual Insurance Coverage Litigation Midyear Conference on February 22 in Arizona.

The panel will provide a comprehensive review of the “nuts and bolts” and practical issues including coverage and bad faith that every practitioner, in-house counsel, and insurance professional has had to, or can expect to deal with during their career.

For more information, please view the conference program brochure.

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Caryn Bellus and Ariella Gutman Standiford attended the Greater Miami Jewish Federation's ("GMJF") Women's Event on October 31,2017. Ariella serves as a Board Member for "The Network" (45 and under group of the GMJF) as a co-chair of the event, which is one of the largest annual gatherings of Jewish women in South Florida. The event featured guest speaker, Suzi Weiss-Fischmann, Co-Founder and Brand Ambassador of OPI Products, Inc.


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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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Sharon C. Degnan, of the Orlando office, prevailed in an appeal before the Fifth District Court of Appeal in a case involving collateral source set-offs. Following a jury trial in a personal injury case, where the jury did not award Plaintiff all of his past medical expenses, Defendant filed a motion requesting a setoff in the full amount of the contractual adjustments to Plaintiff’s medical bills, which were written off by Plaintiff’s health insurer. After the trial court granted Defendant’s set-off motion, Plaintiff appealed and argued that the Defendant could not meet his burden to show entitlement to a set-off because it was unclear what bills had been awarded by the jury and thus no set-off should be given. Plaintiff also argued that if any set-off was appropriate, it should be a pro-rata set-off based on the percentage of the bills that were awarded. Following oral argument, the Fifth District issued a per curiam affirmance of the trial court’s decision and agreed with Sharon’s argument that the plain language of §768.76 mandated that the collateral source set-off be given for the full amount of the contractual adjustments and there was no legal basis to justify a pro-rata set-off.Continue...

Angela C. Flowers, of the Ocala office, recently obtained a reversal of the trial court’s order granting Plaintiff a new trial based on allegedly improper—but unobjected to—defense closing arguments of outside trial counsel. This case arose from a slip-and-fall at an amusement park where the jury returned a complete defense verdict. That victory was initially wiped out by the trial court’s order granting a new trial. As Angela explained in her briefs in the appeal, one thing that made this case unusual is that, within 3 days after the fall, Plaintiff began treating with a chronic pain management specialist even before seeing his primary doctor, and each of his treating physicians acquired an immediate, direct financial interest in the litigation. At trial, Plaintiff’s counsel made a tactical decision to preemptively explain and elicit that he referred Plaintiff to the pain doctor, and, in closing argument, he offered what amounted to unsworn explanations for his referral relationship with the treating doctors. The trial court deemed comments made by defense counsel in closing arguments on the subject to be fundamental error. On appeal, Angela persuaded the appellate court to reverse and reinstate the defense verdict. Although the appellate court found that certain defense arguments were improper, the court was persuaded that the unobjected-to comments did not rise to the level of fundamental error. Specifically, had Plaintiff objected to the closing arguments, they could have been cured by a timely objection, after which the trial court could have issued a curative instruction to the jury. Accordingly, the court reversed and remanded to reinstate the jury’s defense verdict.Continue...

Sharon C. Degnan, of the Orlando office, prevailed in an appeal before the Second District Court of Appeal in an insurance coverage case where the insureds sought coverage for damages sustained to their motorcycle, when they were required to lay the motorcycle down on the highway after a tire failure. The insureds motorcycle policy did not carry collision coverage, therefore they tried to argue that coverage was available under the policy’s comprehensive coverage provision. After the trial court granted the insurer’s summary judgment motion, which was drafted and argued by Sharon and Angela C. Agostino, of the Fort Myers office, the insureds appealed. The appellate court affirmed the entry of summary judgment and agreed that no insurance coverage was available for the loss under the motorcycle policy’s comprehensive coverage.Continue...

Greg J. Prusak and Toni M. Turocy, of the Orlando office, obtained a defense verdict in Brevard County in a UM claim involving a drunk driver who struck the rear of a utility truck while the Plaintiff was 45 feet in the air in a bucket lift changing a street light. KD represented the UM carrier for the Plaintiff’s employer.

The Plaintiff went on to have a lumbar fusion and two cervical fusions. Through discovery, Greg and Toni learned that the Plaintiff had been involved in a prior MVA three years earlier where he claimed the exact same injuries and exact same symptoms as he was claiming in the underlying litigation. However, Plaintiff never disclosed this prior MVA to any of his treating providers.

During the defense’s vocational rehab evaluation in December 2017, Plaintiff claimed he couldn’t lift his arms above his head, had trouble with balance and walking, couldn’t stoop, couldn’t bend, etc. Plaintiff’s counsel retained the dynamic duo of Drs. Craig Lichtblau and Bernard Pettingill, who presented a future life care plan valued at over $2 million.

The UM carrier set up remote surveillance in January 2018 upon learning that the Plaintiff had moved from WPB to Cocoa. The surveillance footage, comprised of 5 consecutive days, showed the Plaintiff on a ladder reaching over his head to take down Christmas lights, bending, stooping, and even using post hole diggers to plant two palm trees in his front yard.

They also found Facebook posts that the Plaintiff was the proud new owner of a boat. At trial, Plaintiff argued that the boat was registered in his Dad’s name, and he was just storing it for him in Florida. However, a look at Dad’s Facebook page revealed a similar post by Plaintiff’s Dad which said “delivering a beautiful boat to my son.”

Greg got Dr. Lichtblau to testify on the stand that while it was his opinion the Plaintiff, a 39-year-old man, was totally disabled and could never work again, it was perfectly fine for him to go boating and fishing. The total medical bills Plaintiff incurred were over $481,000.00.

At the conclusion of trial, Plaintiff and his wife made a $5.3 million demand to the jury. In response, the defense conceded that Plaintiff likely suffered a sprain/strain of his cervical and lumbar spine and asked the jury only to pay for the reasonable medical expenses related to that post-accident treatment (i.e., $82,000.00).

After only one hour of deliberation, the jury returned a verdict in the amount of $251,000.00. They awarded past medical expenses in the amount of $87,000.00, lost earnings in the past of $78,000.00, and future lost earnings in the amount of $86,000.00. The jury found Plaintiff did not suffer a permanent injury as a result of the subject accident and awarded no past or future non-economic damages and awarded $0 consortium damages.

The UM carrier had previously filed a PFS to both Plaintiffs for the total amount of $500,000.00, which was not accepted. Moreover, at mediation the UM carrier offered Plaintiffs $525,000.00, which was also rejected.
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Blake H. Fiery, of the Ft. Lauderdale office, prevailed on a Motion for Summary Judgment in Okeechobee County in a wrongful death, motor vehicle accident, dram shop claim brought against a bar, which employed a 20-year-old bar manager, who was alleged to have supplied alcohol to minors before the crash occurred.

Blake established, through a long procession of depositions, that the bar kept close tabs on its alcohol, in this case, Hennessy (a tweet shortly before the accident announced it was “almost Hen-thirty”). Nobody could pinpoint who supplied the alcohol absent an impermissible level of speculation.

The plaintiff attorney filed opposing affidavits that made it appear quite unlikely the court would even consider granting the motion. Blake, however, essentially side-stepped their affidavits and argued that even if the court were to accept the argument that this 20-year-old stole alcohol from the bar before leaving work that night, it would not qualify as the bar “furnishing” alcohol under the statute.
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Sarah R. Goldberg, of the Miami office, obtained a summary judgment in an insurance carrier’s favor, following 14 months of the Plaintiff delaying the case and aggressive discovery and Motion Practice on Sarah’s part. Plaintiff was seeking replacement of a roof and the full interior of both the main house and detached efficiency of the property. Plaintiff’s counsel continually refused to respond to discovery, failed to have their witnesses appear for depositions and continually requested continuances on Sarah’s motion for summary judgment hearing. Sarah convinced the Court to strike the Plaintiff’s first expert after he refused to appear for deposition and was successful in having the court strike the Plaintiff’s second expert due to untimely disclosure. Sarah then convinced the court not only to deny the continuance of the hearing on the Motion for Summary Judgment once again, but to grant the motion in Sarah’s client’s favor. Plaintiff then moved for rehearing claiming “excusable neglect” for untimely disclosure of the second expert. The Court denied Plaintiff’s motion for rehearing based on Sarah’s written memorandum which set forth in detail Plaintiff’s numerous discovery violations in the case, showing willful failure to prosecute, not “excusable neglect.”Continue...

Laurie J. Adams and Alexandra V. Paez, of the West Palm Beach office, successfully dismissed a bad faith case within a UM complaint, in Dade County. Although the trend has been abatement in some jurisdictions, there are still viable reasons a case can and should be dismissed, especially considering the posture of the case and its effect on judicial economy. The Court also granted the carrier’s motion for protective order as to bad faith discovery, struck the attorney’s fee claim as there was no denial of coverage, and granted our motion striking improper breach of contract allegations within the UM complaint. It is now pared down into the straight UM claim it should have been from the beginning.Continue...

Christopher M. Utrera, of the Miami office, obtained Partial Summary Judgment in favor of a developer client. Plaintiff, a condominium association, brought suit against multiple parties for a myriad of construction defects at the subject property. The property is a mixed-use development consisting of a marina, commercial space, plus a hotel and condominium units within a single high-rise structure. The Plaintiff raised defect claims for most areas of the property, including, but not limited to, the structural components, roof, mechanical and electrical systems, stucco, glazing, parking areas, and interior finishes. Though no official damage estimates were provided, the type of claimed damages are typically in excess of several millions of dollars.

Summary judgment was filed based upon the Plaintiff’s lack of standing to pursue certain alleged claims, as the governing covenants and condominium declarations state that the hotel (not the condominium association) is responsible for the maintenance and repair of what is called the ‘Shared Facilities.’ The Shared Facilities are, in essence, defined as those areas typically part of a condominium’s common elements, such as the structural components, roof, mechanical and electrical systems, stucco, glazing, parking areas, etc. Because the governing documents described the Shared Facilities as being solely the property of the hotel, and subject to the hotel’s discretion for maintenance and repair, Chris argued the Plaintiff association lacked standing and was not the real party in interest to pursue the subject causes of action. The Plaintiff association responded by arguing that its unit owners still had a common interest in ensuring the alleged defects were remediated. Furthermore, the association claimed it was responsible for reimbursing the hotel for half of the repair costs associated with the defects, thereby allowing them to pursue the lawsuit against the defendants. Extensive motions and responses were filed, and following a lengthy hearing on the summary judgment motion, the Court ultimately sided with Chris’ argument that the condominium association did not have the requisite standing to pursue claims related to the Shared Facilities. Just recently, the Court upheld its own ruling following two separate motions for rehearing filed by the Plaintiff.
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Sarah R. Goldberg, of the Miami office, received voluntary dismissals in 2 cases involving pre-Hurricane Irma roof claims. In the first claim, the mold remediation company pursued a claim from a roof leak. Through aggressive discovery by Sarah, including setting several depositions close in time to the hearing on the Motion for Summary Judgment Sarah filed, the plaintiff voluntarily dismissed the claim on the eve of the hearing on the motion for summary judgment.

On the second claim, Sarah, early on, identified the lack of evidence of any cause of the alleged loss and tailored her discovery to depose the homeowner and her representatives who could not provide a cause for the loss. After these depositions were completed, Sarah filed a Motion for Summary Judgment, which caused the plaintiff to dismiss the case two days prior to the hearing on the motion for summary judgment.

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Chelsea R. Winicki, of the Jacksonville office, obtained an order granting her Motion for Final Summary Judgment in a high profile case that has gained national attention. Chelsea filed the Motion for Summary Judgment on behalf of her client, Rusty Rodgers, a Special Agent with the Florida Department of Law Enforcement. In the matter, Plaintiff, Jeremy Banks, a law enforcement officer with the St. Johns County Sheriff’s Office, alleged civil rights violations under Federal Statute 1983, as well as intentional infliction of emotional distress, against Special Agent Rodgers.

The case arises out of the death of Michelle O’Connell, the then-girlfriend of Deputy Banks. On September 2, 2010, Michelle O’Connell was found dead in the home that she shared with Deputy Banks. The cause of death was a gunshot wound to the head and the weapon used was the duty weapon of Deputy Banks. St. Johns County Sheriff’s Office arrived on scene, commenced an investigation, and deemed the death a suicide.

However, the family of Michelle O’Connell was not convinced that Michelle committed suicide. Several months later, Florida Department of Law Enforcement was brought in to investigate the matter and Special Agent Rusty Rodgers was assigned the case. Through Special Agent Rodgers’ investigation, additional evidence was uncovered and turned over to the State Attorney’s Office. However, Deputy Banks was not charged with the crime.

Deputy Banks first filed his lawsuit against Special Agent Rodgers in January of 2014, alleging that Special Agent Rodgers, during his investigation of the case, committed civil rights violations under Federal Statute 1983 and intentional infliction of emotional distress. Chelsea represented Special Agent Rodgers since the initial Complaint was filed with the continued intention of seeking a dismissal of the case against Agent Rodgers through a Motion for Summary Judgment. Years of litigation ensued, with the depositions of high profile members of the legal and law enforcement community including numerous law enforcement officers, the Sheriff of St. Johns County, State Attorneys, and a Judge.

Chelsea filed the Motion for Summary Judgment in March of 2017. The ruling from the Federal Court, granting the Motion for Summary Judgment, and dismissing Chelsea’s client, came out in March of 2018, which was reported on in local news publications. Since the death of Michelle O’Connell, the case has gained national attention and has been the subject of a documentary on Frontline, Dateline, 20/20, and three New York Times articles, including a front page story in June of 2017. Plaintiff has elected not to appeal the decision.

https://www.firstcoastnews.com/article/news/crime/judge-dismisses-civil-case-against-lead-fdle-investigator-for-michelle-oconnell-death/77-533682705

https://www.nytimes.com/2017/06/17/us/michelle-oconnell-jeremy-banks.html

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