November 7, 2018
11 North Water Street, Suite 10290
Mobile, Alabama 36602
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In 1963, Gene Kubicki founded the firm based on dedication to excellence. The same high standards have been maintained for over five decades -- years which have seen the firm’s ranks swell to over 100 attorneys.
Our team knows return clients are the life blood of any law firm and this is why we ensure client satisfaction by an exacting attention to service and quality. Client service coupled with a spectacular work ethic, makes our team hard to beat.
In response to the growing needs of its clients, the firm began expanding in the early 1980's and today is a diverse full-service law firm providing trial, appellate, coverage, commercial and real estate transaction services.
Kubicki Draper enjoys a national reputation for expertise in the handling of complex, high stakes litigation matters, as well as, appellate, general commercial and real estate practice.
Kubicki Draper provides service in the following areas:
- Abuse Claims
- Administrative Law and Criminal Licensing
- Admiralty and Maritime
- Alternative Dispute Resolution
- Appellate Practice and Complex Litigation Support/Consulting
- Automobile and Motorized Vehicles
- Bad Faith and Claims Handling Assistance
- Banking and Financial Services
- Bankruptcy and Creditors' Rights
- Business Litigation
- Class Actions / Multi-District Defense
- Commercial Litigation and Transactions
- Community Associations
- First Party Property - Personal and Commercial
- Fraud / SIU / EUO
- Hospitality and Retail
- Insurance Coverage
- Intellectual Property
- Labor and Employment
- Liquor Liability
- Medical Malpractice
- Personal Injury Protection (PIP)
- Premises Liability
- Probate and Minor Guardianships
- Products Liability
- Professional Liability
- Real Estate
- Trucking, Transportation and Logistics
- Workers' Compensation / Longshore and Harbor Workers
October 26, 2018
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: email@example.com.
October 16, 2018
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: firstname.lastname@example.org.
October 11, 2018
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.Continue...
October 4, 2018
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 email@example.com.
September 28, 2018
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.
- The accident and claim were reported to GEICO the day of the accident and was assigned to a claims adjuster.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.Continue...
September 11, 2018
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?
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.Continue...
September 6, 2018
In this case, the Fourth District Court of Appeal affirmed the decision of the trial court to dismiss a restoration company’s complaint for breach of contract and declaratory relief for an unpaid mitigation invoice. The insurance policy in this case, was issued to Mr. and Mrs. Squitieri and listed PNC Bank as a mortgagee. The policy contained a provision which stated, "[n]o assignment of claim benefits, regardless of whether made before a loss or after a loss, shall be valid without the written consent of all ‘insureds,’ all additional insureds, and all mortgagee(s) named in this policy." After a water damage loss, Mrs. Squitieri hired a restoration company to provide cleanup services and signed an assignment of benefits agreement without the consent of her husband or the mortgage company. The restoration company completed the clean-up and submitted a claim to the insurer who refused to pay the full amount because the assignment did not contain the required signatures. After the restoration company filed suit, the insurer moved for and was granted dismissal on the basis that the assignment failed to comply with policy’s signature requirement.
The Fourth District Court of Appeal upheld the dismissal and found that the policy provision, which requires consent of all insureds and their mortgage company, does not violate common law or public policy and is enforceable under Florida law. The Fourth District Court of Appeal also distinguished a long line of cases beginning with the West Florida Grocery Co. v. Teutomina Fire Insurance Co., 77 So. 2d 209 (Fla. 1917), which have been interpreted to mean an insurance company cannot require the insurer’s consent for a post-loss assignment. The Fourth District Court of Appeal clarified that the policy provision at issue did not prohibit assignment but merely imposed a condition requiring the approval of all insureds and the mortgagee. It reasoned that such a provision is not superfluous and that all insureds and the mortgage company have a vested interest in making sure that repairs to a home are performed by a reputable company.
The Fourth certified conflict with a recent decision issued by the Fifth District Court of Appeal in Security First Insurance Co. v. Florida Office of Insurance Regulation, 232 So 3d 1157 (Fla. 5th DCA 2017) to the extent it held that any restriction on an assignment of benefits was unenforceable. This issue will now be sent to the Florida Supreme Court for consideration. For more information on this or any other first party property issues, please do not hesitate to contact us at firstname.lastname@example.org.
August 17, 2018
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.
August 15, 2018
Brad J. McCormick in Personal Injury Litigation - Defendants and Commercial Litigation
Laurie Adams in Personal Injury Litigation - Defendants
Jane Carlene Rankin in Real Estate Law
June 13, 2018
June 11, 2018
"Fraud in Hurricane Irma Roof Leak Claims" presented by Valerie Dondero, Scott Rosso, Nicole Wulwick and co-presenters from Haag Engineering, Aaron Duba and Ryon Plancer, P.E.
"How to Know a Real House Guest from a Monkey’s Uncle: Assessing Homeowners’ Claims for Fraud Involving Airbnb or Home-Sharing Arrangements" presented by Caryn Bellus, Barbara Fox and Charles Watkins.
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!
March 12, 2018
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.
March 9, 2018
February 13, 2018
February 13, 2018
February 9, 2018
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.
February 8, 2018
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.
November 1, 2017
October 24, 2017
We have a great program lined up for November 17, 2017 in Tampa, Florida:
Preparing Field Adjusters for Deposition
Speakers: Sarah Goldberg, Charles Watkins and Jennifer Newell of Federated National Insurance
Proving Material Misrepresentation and Fraud in Florida
Speakers: Valerie Dondero and Nicole Ellis
Look Who's Talking Now
The Story of the Bait and Switch: Assignment of Benefits
Speakers: Nicole Wulwick and Anthony Atala
The Good (faith), The Bad (faith), And (how to avoid), the Ugly...in claims handling
The Ugly Potential of Bad Faith Claims
Speakers: Joseph Carey, Michael Walsh and Anthony Atala
Dr. Jekyll and Mr. Hyde
The Two Faces of the Concurrent Cause Doctrine
Speakers: Stefanie Capps, Jarred Dichek and Kendra Therrell
The Money Pit
Walking through a Post-Claim Inspection
Speakers: Nicole Wulwick, Scott Rosso and Dr. Ralph Moon of GHD
This course will set out a step-by-step guide to inspecting a property after a plumbing loss or roof leak claim is claimed.
The courses have been approved for continuing education credits by the State of Florida and guests will be eligible to receive up to six Florida Adjuster Continuing Education Credits.
For registration information, please contact Aileen Diaz at email@example.com.
November 15, 2018
- 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
August 7, 2018
August 1, 2018
July 19, 2018
- 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
March 15, 2018
- 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
March 15, 2018
March 15, 2018
December 27, 2017
December 19, 2017
November 9, 2017
August 1, 2018
August 1, 2018
August 1, 2018
August 1, 2018
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.
August 1, 2018
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.
August 1, 2018
August 1, 2018
August 1, 2018
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.
August 1, 2018
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.
August 1, 2018
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.