August 10, 2022
If it seems like a tough coverage question, it’s best to obtain an EUO. Recorded statements are almost always a good idea, so if you can obtain one, go for it. But, when the facts present a more difficult coverage question, it’s best to seek an EUO where an experienced lawyer can help you navigate the legal nuances involved. Whether it’s a golf cart, a kit car, a work vehicle, a young driver away at school, or an event that just doesn’t seem to arise out of the ownership, maintenance, or use of the vehicle (e.g., tailgating-related accident, injuries from a fist-fight inside the vehicle, or injuries from using mobile gym equipment mounted to a vehicle), we can help you.
(2) Ask the Right Questions
Whether you obtain an EUO or take a recorded statement, be prepared to ask the right questions. In preparation for conducting an EUO or a recorded statement, review the claim file and determine what issues need to be resolved. This will help guide you in formulating the right list of questions to ask. During the EUO, listen carefully to the insured’s responses and ask the proper follow-up questions. For example, if an insured tells you she was traveling to a job site or work meeting at the time of the accident, follow up with questions to confirm whether she was on the clock, how often she uses her vehicle in the course and scope of her employment, and so on.
(3) BOLO for "Regular Use"
Be on the lookout for potential issues relating to “regular use.” Some of the most common examples of situations where a vehicle’s regular use may need to be fleshed out include: (1) occasional or incidental use versus frequent or regular use; (2) vehicles not owned by the named insured but instead owned by a family member living in the named insured’s household; (3) vehicles used for work; and (4) repairs and total losses. In these instances, ask questions such as who the primary driver of the vehicle is, who maintains keys to the vehicle, whether permission is needed to drive the vehicle, who oversees vehicle maintenance and costs, etc.
(4) Determining a Person's Residence
There are several factors to consider in determining a person’s residence. Under Florida law, a person’s residence is their place of abode (i.e., typically where they sleep each night) and can be permanent or temporary; and a resident is generally a person who lives at a place with no present intention of removing themselves from that place (i.e., no plans to permanently move elsewhere or leave the household altogether). When this issue arises, try to determine where the person receives mail, the longest amount of consecutive nights the person has stayed overnight at the location, whether the person has his/her/their own bedroom at the location, whether he/she/they have any intention of moving and when, etc.
(5) Named Insured's "Household"
When determining residency, you also need to consider whether the alleged resident is a member of the named insured’s “household” – Florida courts have established that aside from living under the same roof as a named insured, a person must also meet other requirements in order to be considered a resident of the named insured’s household. This includes: (1) having close ties of kinship with the named insured; (2) living in a fixed dwelling unit; and (3) having enjoyment of each part of the living facilities that the named insured also enjoys. Here, consider questions regarding whether all of the residents do any activities together (e.g., eat meals, grocery shop, watch television), whether the insured has full access to the entire house or only certain rooms/areas, and whether the insured freely allows others to enter into his/her/their part of the residence.
If you have any questions on the tips above, please contact Michael Clarke, Sebastian Mejia or Ryan Elias.
August 9, 2022
July 19, 2022
July 18, 2022
The Court agreed with Angela that the insureds failed to timely appeal because, pursuant to the new appellate rule governing non-final appeals, it did not have jurisdiction over an appeal to enforce a purported settlement agreement because the appeal was taken from a subsequent trial order clarifying that the trial court’s prior denial was as a matter of law, and a motion for rehearing or clarification does not toll rendition of a non-final order. Further, the clarifying order is not independently appealable because the court did not issue a new ruling on the enforceability of the purported settlement agreement. Read full opinion here.
July 6, 2022
July 5, 2022
June 29, 2022
June 24, 2022
June 22, 2022
June 17, 2022
June 16, 2022
In Grieco v. Daiho Sangyo, Inc., et al., 4D20-2294, 4D20-2557 (Fla. 4th DCA June 15, 2022), the Fourth District Court of Appeal affirmed summary judgment in our client’s favor in a case brought by a plaintiff against a manufacturer, distributor and retailer of a compressed gas dusting spray product intended to clean computers and other electronics, which, when misused by being inhaled, produces a short-lived high. The plaintiff was injured when the driver-tortfeasor, who was addicted to inhaling this type of product, purchased a can from the retailer and, while driving home, got high at a red light and lost control of her vehicle, causing it to collide with the plaintiff. The plaintiff sued the retailer, the product manufacturer, and the distributor under strict liability and negligence theories based on design defect and failure to warn.
The Fourth District in a lengthy 18-page decision found that the plaintiff's claims failed on all theories. As it related to strict liability for an alleged design defect, the court held that product liability defendants are not strictly liable when a third party’s injury results from a consumer’s unintended and illegal use of a product.
The court also held that the strict liability duty to warn claims failed because the warning label on the product expressly stated that misuse through inhalation could be harmful or fatal, and that a bitterant was added to the product to discourage inhalant abuse. Even though the product label did not prevent the driver-tortfeasor from misusing the product, the court found that summary judgment was properly entered on the claim because it was sufficient to warn a reasonable consumer not to inhale it.
With regard to the common law negligence counts, the court wrote an in-depth analysis of foreseeability in the context of duty and proximate cause. It concluded that the causal link between the danger (being struck by a vehicle driving off the roadway) and the alleged misconduct (manufacturing and selling a household dust-removal product) was simply too attenuated and remote to support the existence of any duty to third parties arising from the product’s misuse. Moreover, the court determined that the plaintiff’s injuries were the result of the driver-tortfeasor’s reckless indifference to her own safety as well as the safety of others and not the conduct of the product liability defendants. Read more here.
June 9, 2022
If you have any questions or concerns regarding exposure analysis for a defense or indemnity provision, our construction group is well-versed in these provisions. Contact the group at: email@example.com.
June 8, 2022
From left to right below, meet: Jonathan Garvin, Ashlie Avila, Skyler G. Jackle, Ylena Zamora-Vargas, Maria Alfaro, Toni Attard, Cheyenne Dallis, Ashley Findeisen, and Christopher Cruz.
Our law clerk program is lead by Jennifer Remy-Estorino and Nicole Wulwick of our Miami office who focus on recruiting highly-motivated law students with top academic credentials. Jennifer and Nicole pair each law student with a mentor who provides opportunities for hands-on experiences alongside shareholders and associates. The program’s goal is to empower students to develop skills that will be critical in transitioning the student from the classroom to the courtroom. The experiences they receive will serve as a cornerstone to their career, hopefully here with the KD family.
Successful summer clerks are considered for associate positions upon graduation and bar admission.
For more information about our program, please contact firstname.lastname@example.org.
June 8, 2022
June 7, 2022
June 6, 2022
We are a proud sponsor of the 2022 Florida Institute Fraud Education Committee (FIFEC) Annual Conference taking place this week from June 8-10 in Orlando, Florida. We are also excited about our team being slated to present several topics! We hope to see you in their sessions, but if not, come by our photobooth and say hello! We look forward to seeing you! For more information, or to register please click here.Day 1
Wednesday, June 8, 2022
Time: 1:20 p.m. – 3:20 p.m.
Title: The Story of a Bartender, a Local Radio Celebrity and a Fraudulent Accident
Presenters: Jarred Dichek (KD), Narcy Fajardo-Sanchez (Progressive), Kelvin Gomez (MetLife/Farmers Insurance Company)
Description: This is an intermediate level course that will walk attendees through the investigation of a fraudulent accident where PIP, UM, and BI claims were made. The course will discuss the red flags that indicated possible fraud, what investigative tools a special investigator has at their disposal to determine if fraud is occurring, how to gather evidence that will be admissible at trial during the investigation, how to pursue a fraud claim in court and what elements are needed to be proved.
Thursday, June 9, 2022
Time: 8:00 a.m. – 12:00 p.m.
Title: Florida 4 Hour Law and Ethics Update
Presenters: Michael Carney, Caryn Bellus, Gregory Prusak, Michael Walsh
Description: This course will discuss and update Florida adjusters on regulatory matters, Florida case law update and ethics.
Title: A Covid Year in Review for First Party Claims
Time: 10:10 a.m. – 12:00 p.m.
Presenters: Anthony Atala (KD), Erika Cordovi (KD), Barbara Fox (KD), Carl Nemeth, Jr., (Tower Hill Insurance Group), Jennifer Newell (FedNat Insurance Company)
Description: 2020 was the year of the unknown, and 2021 proved to be as challenging. However, that did not curve fraudulent first party claims in Florida. This course will highlight some of the trends seen in the last couple of years, such as Engineering Inspections, Weather Events in 2020, Senate Bill 76, Hot Litigation Topics, and Attorney Discipline, and how these same issues are affecting 2022 and beyond. The panelists include 2 SIU Managers discussing how their teams have been able to investigate these fraudulent claims.
Title: Investigating Mechanical Damage in Homeowner Wind Claims and How to Identify and Handle Fraudulent Claim Activity
Time: 4:10 p.m. – 6:00 p.m.
Presenters: Stefanie Capps (KD), Marc Leonard (Rimkus Consulting Group)
Description: This course will discuss forensic evaluation, possible human involvement and fraudulent conduct in homeowner’s insurance claims and strategies for investigation and handling.
Friday, June 10, 2022
Time: 10:10 a.m. – 12:00 p.m.
Title: Combating Fraudulent and/or Excessive Attorneys’ Fee Demands
Presenters: Jarred Dichek (KD), Sara Engel (The Engel Firm), Allison Harke (Allison Clasby Harke P.A.)
Description: Learn how to evaluate attorney fee demands, how to effectively review time sheets and identify over-billing, fraudulent billing, and improper billing. Guests will learn how a fee hearing works, how to use attorney fee experts, and what case law and rules support denial of certain billing entries.
June 3, 2022
June 1, 2022
May 27, 2022
The new rule is intended to align with §768.79, Fla. Stat., which “simply contemplates a comparison of monetary amounts, with subsections (2)(c)-(d) of that statute providing only that a settlement offer must “[s]tate its total amount” and '[s]tate with particularity the amount offered to settle a claim for punitive damages, if any.'" See full opinion here.
May 26, 2022
2. Creates Section 624.1551, Florida Statutes. This Statute requires a policyholder first establish the insured carrier breached the insurance contract to prevail in a claim for extra contractual damages (a bad faith lawsuit).
3. Amendment to Section 627.428, Florida Statutes. This amendment prohibits transfer of a claim for attorney’s fees under a residential or commercial property insurance policy to anyone other than the named insured or named beneficiary.
4. Amendments to Section 627.701, Florida Statutes. These amendments permit the use of a separate deductible for roof losses provided that a premium credit is provided and the insured signs documents confirming they understand that accepting a separate roof deductible may result in high out of pocket costs. The roof deductible may not apply to a total loss of the structure, a hurricane, a loss resulting from a tree or other hazard falling on the roof and puncturing the roof deck, or when repair of less than 50 percent of the roof is needed.
5. Amendments to 627.70131, Florida Statutes, effective January 1, 2022. The significant change in this section requires an insurance company to provide an estimate of damages if requested by the insured. However, the amendment makes clear that an insurance company is not required to create an estimate for all claims.
6. Amendments to Section 627.70152, Florida Statutes (created by SB-76). The amendments allow for a Court to award an insurance carrier fees and costs when the claimant dismisses a case pursuant to the requirements of this Statute.
Additionally, the amendment creates a presumption that a lodestar attorney fee award is reasonable and sufficient. The presumption may be rebutted in rare and unusual circumstances where competent counsel could not be retained in a reasonable manner. This means that an attorney fee multiplier cannot be awarded without this showing.
7. Amendment to Section 627.7152, Florida Statutes (The AOB Statute). The most significant portion of this amendment allows for an award of attorney’s fees and costs to an assignee only under Section 57.105, Florida Statutes.