Jovani Monexil, of our Tampa office, is on the Member Services Committee for the HCBA’s Young Lawyers Division that helped organize the Young Lawyer’s Division’s fun run/walk to commemorate pro bono week by supporting Hillsborough County Bar Association’s recent Miles for Justice in Tampa. Joining Jovani on the walk from our Tampa office were: Eli Marger, Jennifer Feld and her husband Eric and their two children: Kameron and Micah.



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Caryn Bellus, of our Miami office, has been re-certified by the Florida Bar in Appellate Law. She specializes in the areas of civil appeals, complex litigation support and insurance coverage, and has been certified since 2006 – Congratulations, Caryn! To learn more about Caryn, click here.


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We are a proud sponsor of Florida Memorial University Social Justice Institute’s Legal Scholars Pipeline Program. The program is designed to inspire students to consider careers in the legal profession.



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Kubicki Draper is proud to announce that Michelle Krone, of our Ft. Myers office, has been re-certified for the third time by the Florida Bar in Construction Law. She was in the inaugural certification class in 2005. Congratulations, Michelle! Learn more about Michelle here.


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We are happy to announce that Peter Baumberger, Caryn Bellus, Brad J. McCormick, Charles Watkins, Laurie Adams, Michael Carney, and Jane Rankin were selected for inclusion in the 2022 Edition of South Florida’s Best Lawyers®. Congratulations to our team!




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We are honored to have been selected for inclusion in the U.S. News and Best Lawyers 2022 Edition of “Best Law Firms” as Tier 1! The Tier 1 recognition is reserved for the highest scoring firms during the annual review process. For more information on the methodology, please click here.



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Michael Carney participated in Miami-Dade County Public Schools’ Ethical Governance Day. The Miami-Dade School Board sponsors this day to bring volunteers into the classroom to speak to students about the significance of civic participation. This year, Michael was honored to be asked to present to a group of honor students at Miami Senior High School about the importance of civil discourse on important topics. Michael has participated in this program for approximately ten years now and finds value in discussing with students ethical values that empower them to be role model citizens.

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We are a sponsor of the Miami Children's Museum 2021 Community Halloween! The event is taking place from October 25 - October 31 and will include tons of family-friendly Halloween activities. Miami Children’s Museum is dedicated to enriching the lives of all children by providing environments for active learning, creative play, cultural explorations and self-discovery, and we are proud to support its efforts.


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Please join us in congratulating our law clerks, who recently passed the Florida Bar exam! We applaud their outstanding achievements and welcome them as our newest Associates. The future is bright!


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We are so proud to be in the top 3 of The National Law Journal’s (NLJ) Women in Law Scorecard for 2021!  The scorecard ranks 350 of the largest law firms in the country by their representation of female attorneys and partners, and we are so honored to be a part of it!

We look forward to continuing our efforts in making sure ladders of opportunity remain open for everyone regardless of gender, race, ethnicity, age, sexual orientation, religion and other self-identifications. Access the NLJ scorecard here.

 

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In CCM Condominium Association, Inc., V. Petri Positive Pest Control, Inc., 2021 WL 4096926 (Fla. Sept. 9, 2021), the  Florida Supreme Court held that post – offer prejudgment interest must be excluded from the amount of the “judgment obtained” when calculating whether a plaintiff has met the threshold amount to recover attorney’s fees pursuant to a proposal for settlement. Case available here.

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We are proud to announce the following KD attorneys have been recognized as 2022 "Best Lawyers in America," by the highly-respected Best Lawyers® peer review guide.
 
Peter Baumberger - Construction Law, Litigation – Construction, Mass Tort Litigation / Class Actions – Defendants
Caryn Bellus - Appellate Practice
Brad McCormick - Commercial Litigation, Personal Injury Litigation – Defendants
Charles Watkins - Litigation – Insurance, Personal Injury Litigation – Defendants
Angela Flowers - Appellate Practice
Betsy Gallagher - Appellate Practice
Laurie Adams - Personal Injury Litigation - Defendants
Michael Carney - Litigation - Insurance
Jane Rankin - Real Estate Law
 
Recognition by Best Lawyers is based entirely on peer review. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.
 
Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services. Their belief has always been that the quality of a peer review survey is directly related to the quality of the voters.
 
https://www.bestlawyers.com/methodology



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In Certified Priority Restoration a/a/o James Krempler v. Citizens, No. 4D21-149 (June 30, 2021), the Fourth District Court of Appeal upheld summary judgment in favor of Citizens based on the Reasonable Emergency Measures language of its policy. 

Certified Priority Restoration (CPR) had executed an assignment of benefits with the insured, with a term of the assignment stating it was operating “as a direct request to (Citizens) for approval to exceed” the $3,000.00 policy limit for Reasonable Emergency Measures coverage. 

This document was transmitted to Citizens as part of 18 separate documents sent by CPR, with no specific attention drawn to the provision and no attempt to formally request to exceed the $3,000.00 cap as required by the policy. 

The appellate court found CPR’s “request” to be a “gotcha tactic” which is not permitted under Florida law.  Therefore, Citizens was under no duty to pay CPR above and beyond the policy cap for Reasonable Emergency Measures. Read case here.


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We are pleased to share that we recently held a boot camp for our talented associates which concluded with an outstanding mock trial.  The program directed by equity partner, Laurie Adams, of our West Palm Beach office, had over 70 participants. Our lawyers received support and training from experienced mentors to hone and perfect their craft!


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Senate Bill 54 which looked to do away with PIP and reform BI was presented (after passing the Senate and House) to Governor Desantis on June 28, 2021.

On June 29, 2021 the Governor withheld his approval and officially vetoed the bill.
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No news on the big PIP bill yet, but SB 420 passed!  Here’s what you should know.

The new law provides:

An insurer may exclude an individual for all claims and/or lawsuits arising out of operation of a motor vehicle for the following coverages:

• No-Fault
• Bodily injury
• Property damage
• Uninsured motorist
• Any other coverage which is not required by law to be purchased

In order to exclude a person:

• The named insured must identify the individual on the declaratory page and/or an endorsement (the named insured cannot be excluded)
• The named insured must consent in writing to exclude the person
• An excluded driver must establish, maintain, and show proof of financial ability to respond for damages arising out of the ownership, maintenance or use of the motor vehicle as required by Chapter 324, Fla. Stat., and maintain security as required by §627.733, Fla. Stat.

An insurer can not exclude coverage:

• For the named insured
• For an identified individual who is injured while not operating a motor vehicle
• For any person excluded solely because of race, color, religion, sex, national origin, age, or handicap
• If the exclusion is not consistent with the insurer’s underwriting filed pursuant to §627.0651(13)(a), Fla. Stat. 

Section 627.736, Fla. Stat., (the PIP statute) was amended to allow this exclusion in PIP policies.

Potential issues to consider before denying coverage for an excluded individual:

• Verify the excluded person is listed on the declaratory page or on an endorsement
• Verify there is written consent from the named insured for the exclusion. This is likely going to be similar to a UM coverage rejection/selection form
• Verify proof of financial ability to respond to damages for the excluded person were in fact established and maintained

The new law takes effect July 1, 2021.

For more information and/or questions, please contact us at info@kubickidraper.com.

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Heather Eres v. Progressive Am. Ins. Co., No. 20-11006, 8:17-cv-02354-TPB-SPF (11th Cir. 2021)

 

• Upon being notified of an accident where plaintiff was severely injured and her son was killed, the insurer immediately tendered its policy limits to plaintiff’s attorney, who was not ready “to receive the checks.” 
• The court found that the insurer remained diligent in following up regarding the tender.
• Plaintiff later communicated through new counsel a desire to accept settlement with certain conditions, including an affidavit from the tortfeasor and a release without indemnity or hold harmless language. 
• The insurer complied with all demands but while the release did not have indemnity language, it contained a waiver of subrogation which plaintiff found to be overbroad and not to comply with her demand to settle.
• The settlement was never effectuated, and plaintiff recovered $10 million following a jury trial -- then filed a bad faith suit.
• The Eleventh Circuit, affirming the Middle District of Florida, found the insurer did not act in bad faith. 
  • With regard to the release, the Court held the totality of the circumstances, including the fact that the insurer told plaintiff’s counsel in writing that the disputed language could be stricken from the release, relieved the insurer of any bad faith liability.

   

View full opinion here.


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Led by Jennifer Remy-Estorino and Nicole Wulwick of our Miami office, and Jennifer L. Feld of our Tampa office, the team focuses their efforts on recruiting a diverse, highly-motivated group of law students with top academic credentials. Each law student is be paired with a mentor and given the opportunity to work alongside shareholders and associates to draft research assignments, contribute to trial preparation, observe depositions and attend mediations. The goal is to provide guidance and training that will help each student have a better understanding of the practice of law and the importance of providing clients excellent service.

Successful summer clerks will be considered for associate positions upon graduation and bar admission. This summer we welcome: Alec Ede, Tatiana Hernandez, Victoria Scotti, Keani Knight-Walker, James Cox, Wallace Stage, Erika Funderburk, Marissa Zink, Fabiola Meo, and Jordan Weinberg!

For more information about our program, please contact careers@kubickidraper.com.



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We are pleased to announce Teresa Cummings has become a Florida Supreme Court Certified Circuit Court Mediator. Her mediation practice will focus on claims involving automotive liability, personal injury, wrongful death, construction, and contract disputes.

In addition to providing mediation services, Teresa successfully represents insurers and their policyholders in a variety of matters including: Personal Injury Protection (PIP), first party property, fraud/SIU and automobile liability. For any questions, please contact Teresa at 850.436.7313 or tfc@kubickidraper.com.



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December 6, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Anthony Atala, Erika Cordovi, Barbara Fox, Joanne Nachio

2020 was the year of the unknown. However, that did not curve fraudulent first party claims in Florida. This course will highlight some of the trends seen in 2020: engineering inspections, weather events, Senate Bill 76, hot litigation topics, attorney discipline, and how these same issues are affecting 2021 and beyond.

For more information, or to register please contact info@kubickidraper.com.


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December 1, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Peter Baumberger, Michael Carney, Kenneth Oliver

Plaintiff attorneys use a legal strategy commonly called the "reptile theory" to obtain larger plaintiff verdicts by appealing to the primal region of jurors' brains focused on safety and self-preservation. Reptilian theory tactics are deployed during every phase of a case – from discovery through closing argument. This course will provide an overview of the reptilian strategy, how to spot when these tactics are being used and how to defend against the tactics and create the best opportunity for success.

For more information, or to register please contact info@kubickidraper.com.

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November 16, 2021
10:00 a.m. - 3:00 p.m. EST

Presenters: Kenneth Oliver, Michael Carney, Jason Friedman, Melody Kitchen

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 5-Hour Law & Ethics (5-620) requirement? The complimentary webinar meets Florida Department of Insurance's 5-620 CE requirement and will cover:

Regulatory Awareness
Insurance Law and Updates
Ethical Requirements
Industry Trends
Disciplinary Trends and Case Studies

For more information, or to register please contact info@kubickidraper.com.

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November 10, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Barbara Fox, Bretton Albrecht, Jennifer Remy-Estorino

This presentation will provide an overview of civil remedy notices (CRNs), under Florida’s bad faith statute, §624.155, Fla. Stat. The team will cover what civil remedies are, why they are important, and what the requirements are for responding to them.

For more information, or to register please contact info@kubickidraper.com.

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November 3, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Lisandra Guerrero, Raquel Loret de Mola, Kimberly Beckwith, Katherine Kmiec

This course will review the importance of understanding when maritime law may apply to a claim. The team will also go over the advantages and disadvantages of maritime law vs. state law.

For more information, or to register please contact info@kubickidraper.com.



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October 26, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Caryn Bellus and Kenneth Oliver

This course will assist claims professionals in utilizing Florida’s new summary judgment standard to win and resolve cases.

For more information, or to register please contact info@kubickidraper.com.


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The well-being of our attendees and our team is a priority. In this spirit, we have made the difficult decision to convert our live construction conference to a virtual platform due to the present circumstances.

As much as we would have loved to see everyone in person, we hope you will join us for the great program we have lined up from the comfort of your workspace.

If you already registered, you will receive online connection links for each session over the next couple of days.

If you have not yet registered, please contact info@kubickidraper.com for more information.
The complimentary event is designed to provide claims professionals with valuable information that will assist them in their claims handling and management.

We look forward to hosting you and will look forward to getting our live events back on track next year!

Construction Conference Program

Experts in Construction Related Cases - Selection, Direction and Protection

Presenters: Charles Kondla, Pedro Lopez, Harold Saul, Paul McCullough (SEA Limited)

This course will discuss the various aspects of expert retention and why each step in the process can be critical, starting with selection of the expert. This course will walk the audience through the entire process from choosing the right expert to putting the expert in the best position to not only help your case, but also survive a Daubert challenge. The course will culminate in a mock Daubert evidentiary hearing of the expert.
 

Warranty Claims in Construction Cases

Presenters: Michelle Krone, Aaron Haak, Eric Fluharty

Warranty issues arise in almost all construction cases. Whether statutory, express or implied, it is necessary to understand the differences. In this course, the KD team will review the various types of warranty claims, the ramifications of the pleadings, the potential damages recoverable and the defenses available.
 

Construction Defect Claims: Overview and Current Trends on Indemnity Law

Presenters: Michael Suarez, Bryan Krasinski, Jayme Idle

This course will provide a general overview of indemnity law and varying perspectives of its application from three Florida based construction defect practitioners. Topics range from interpretation of contractual indemnity provisions, anti-indemnity statutes, and additional insured considerations. The final discussion will be on the reasons behind and the effect of the current trend of contractors asserting claims for entitlement to contractual indemnity against their subcontractors and then swiftly seeking early determination by the court through summary judgment motions.
 

Construction Defect Coverage Issues

Presenters: Caryn Bellus, Jacqueline Bertelsen, Barbara Fox

Given the number of contractors often involved and the length of time it takes to complete construction projects, coverage issues arise in almost every case. This course will walk claims professionals through the steps of identifying and handling coverage issues, as well as highlighting the latest “hot coverage topics” in construction claims.
 

Effective Construction Defect Case Resolution

Presenters: Peter Baumberger, Raquel Loret de Mola

Achieving early case resolution in construction cases has become increasingly more challenging for claims professionals and parties involved in construction cases. This presentation will cover those challenges and will discuss strategies to effectively approach early case resolution in a cost effective manner.
 

For more information, or to register please email info@kubickidraper.com.

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September 7, 2021
12:00 p.m. - 1:00 p.m.

Presenters: Anthony Atala, Barbara Fox

This presentation aims to educate and assist claims professionals in the most recent cases which affect their handling of claims.

For more information, or to register please contact info@kubickidraper.com.


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September 1, 2021
12:00 p.m. - 1:00 p.m. ET

Presenters: Erika Cordovi, Anthony Atala, Barbara Fox - Members of KD's First Party Property Practice Group

A step-by-step guide to navigating the appraisal process. This course will provide instruction and practical advice on utilizing the appraisal process for successful resolution of claims. It will contain a discussion of Florida law on appraisal, discuss defense strategy and common pitfalls to avoid, and include an update on recent case law.

For more information, or to register please contact info@kubickidraper.com.


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August 20, 2021
12:00 p.m. - 1:00 p.m. ET

Presenters: Pete Baumberger, Jeremy Chevres, Stephen Cozart

Learn all about construction roadway defect claims and how they relate to technical aspects important to claims investigation, analysis, and defense. The team will focus on operational issues in construction zones, temporary traffic control, standards, proper employee training, construction zone monitoring and accident response.

For more information, or to register please contact info@kubickidraper.com.


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August 3, 2021
10:00 a.m. - 3:00 p.m. ET

Presenters: Michael Carney, Kara Cosse, Ken Oliver, Greg Prusak

This presentation meets Florida Department of Insurance's 5-620 CE requirement and will cover:

• Regulatory Awareness
• Insurance Law and Updates
• Ethical Requirements
• Industry Trends
• Disciplinary Trends and Case Studies

For more information, or to register please contact info@kubickidraper.com.

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July 27, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Scott Gross, Aaron Haak - Members of KD's Construction Practice Group

To educate insurance adjusters to leverage the vouching-in process to achieve advantageous settlement outcomes when dealing with non-participating downstream parties.

For more information, or to register please contact info@kubickidraper.com.


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July 20, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Marsha Moses, Carmela Jackson, Blake Fiery - Members of KD's Hospitality, Retail and Premises Liability Practice Group

This course will update insurance professionals on matters involving coverage issues and exposure specific to homeowners’ associations, including fiduciary duties, property claims on common areas, catastrophic loss, maintenance, and negligence.

For more information, or to register please contact info@kubickidraper.com.


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July 13, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Rebecca Brock, Steffen Locascio, Francesca Ippolito-Craven, Jason Friedman - Members of KD's Hospitality, Retail and Premises Liability Practice Group

Learn all about the Florida laws that pertain to skilled nursing facilities.  The KD team will talk about the types of claims asserted against the facilities and how to investigate, defend and evaluate these claims.

For more information, or to register please contact info@kubickidraper.com.


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June 24, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Caryn Bellus, Brian Chojnowski, Jared Brownfield - Members of KD's KD Hospitality, Retail and Premises Practice Group

This course walks claims professionals and vendors through the new requirements vendors and insurers should be aware of to decrease the likelihood of civil liability.

For more information, or to register please contact info@kubickidraper.com.




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June 15, 2021
11:30 a.m. - 12:30 p.m. CT

Presenters: Stephen Cozart and Angela Trawick

2020 was a year full of changes and developments! In this one hour course, we will talk about 2020’s developments in Alabama law on topics important to anyone handling claims or litigation in Alabama. The course will cover case law updates on statutes of limitation, relation back of pleadings, forum non conveniens, contributory negligence and workers compensation immunity.

For more information, or to register please contact info@kubickidraper.com.

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May 21, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Michael Carney, Eli Marger

Do you know how to strategically maximize opportunities for early case resolution? The KD team will review real life examples of tactics that can assist in resolving cases early, and also share experiences where attempts at early case resolution was ultimately counterproductive.

For more information, or to register please contact info@kubickidraper.com.


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May 18, 2021
12:00 p.m. - 1:00 p.m. EST

Presented by members of KD's Construction Practice Group
Presenters: Peter Baumberger and Raquel Loret de Mola

Learn about the intricacies related to defending construction-accident litigation and why retaining defense counsel that is prepared to handle these types of cases and the corresponding challenges that may arise is important.

For more information, or to register please visit info@kubickidraper.com.


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May 12, 2021
12:00 p.m. - 1:00 p.m. EST

Presented by members of KD's Hospitality, Retail, and Premises Liability Practice Group
Presenters: Michael Carney, Victoria Hammonds, Katherine McGovern, Talya Van Embden

Get your paws wet on the topic of dog bite liability and learn tips for preventing, evaluating and defending these claims. Promise we won’t bark information at you!

For more information, or to register please contact info@kubickidraper.com.


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May 7, 2021
9:00 a.m. - 2:00 p.m. EST

Presenters: Michael Balducci, Michael Carney, William Sabinson, Charles Watkins

The complimentary webinar meets Florida Department of Insurance's
5-620 CE requirement and will cover:

• Regulatory Awareness
• Insurance Law and Updates
• Ethical Requirements
• Industry Trends
• Disciplinary Trends and Case Studies

For more information, or to register please contact info@kubickidraper.com.


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IN THIS ISSUE:

• KD in the Community
• News | Annoucements
• Meet Our Newest Shareholders
• New Team Members
• Spotlight on Anthony G. Atala
• Dram Shop Liability for Open and Closed Container Service
• Battling Unsavory Foodborne Illness Claims: Understanding the Potential Causes of Action and Attacking the Use of Circumstantial Evidence
• Florida Adopts the Federal Summary Judgment Standard: A Summary
• Recent Results: Appellate, Trials, Motions, Mediations
• Presentations / Speaking Engagements
• Save the Date: KD’s Construction Conference Set for October 15

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Brian Chojnowski

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IN THIS ISSUE:

• Spotlight on: Kara K. Cosse
• More KD News
• New Additions
• 2020 Florida Super Lawyers and Rising Stars
• Glass House or Brick Wall: Using Policy Condition Violations Realistically to Defend a Claim
• Anti-concurrent Cause: A Shield, a Sword, or Both? You Decide.
• Join Us on LinkedIn
• Can I Get a Lime With My Corona? I Caught Covid at Your Place
• Landlords and Lenders COVID-19 Reality Check: Is that check in the mail?
• Recent Results: Appellate
• Recent Results: Trials, Motions, Mediations
• Presentations & Speaking Engagements
• Perspectives: KD Attorneys Reflect on their Experiences with Racism and Their Hopes for the Future

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As temperatures begin to cool down, and snow birds and tourists return to Florida, premises liability claims against condominium associations are beginning to heat up. Interested in learning about potential liability for condos?

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In Avatar Property and Cas. Ins. Co., v. De Caires, 2021 WL 3176774 (Fla. 3d DCA July 28, 2021), the Third District Court of Appeal reversed the entry of a directed verdict on damages in favor of the plaintiff/insured in a first party property insurance claim.  The Court agreed with the insurer’s position that the evidence demonstrated that the defense vigorously contested the amount of damages claimed, and while the defense did not present its own expert witness on the amount of damages, that did not mean that the entry of a directed verdict for plaintiff was correct.  Rather, the record showed that significant conflicting testimony was elicited by the defense from the plaintiff’s own witnesses.  Consequently, it was error to enter a directed verdict on damages for $80,830.16 where conflicting evidence regarding the amount of damages suffered existed such that the jury could reach different reasonable inferences.  Read more here.


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Caryn Bellus and Angela Flowers obtained an affirmance of an attorney fee and cost award after a defense proposal for settlement.

This is the second of two winning appellate decisions in Pelecki v. Federated National Insurance Company, 5D19-3702 (Fla. 5th DCA May 14, 2021).

In the first, the homeowner, Andrea Pelecki, appealed a $0 final judgment in favor of her insurer, which arose from a jury verdict in her favor for $15,000 less a setoff of $30,000 for insurer’s prior settlement with plaintiff’s husband.

In this second appeal, Andrea challenged a judgment of $126,047.14 for the insurer’s trial attorney’s fees and costs based on her rejection of the insurer’s $5,000 proposal for settlement to her.  The Fifth District affirmed the award of fees and costs, except for a small award of costs for an expert who did not testify at trial. 

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Bretton Albrecht, Caryn Bellus, and Bill Bissett, obtained an affirmance of a final defense summary judgment in favor of our client, the Law Firm of Akerman, LLP in Tien v. Akerman, LLP, Case No. 3D19-0281. (Fla. 3d DCA, May 5, 2021).

Tell me about it:

What did appellate court do:

KD’s appellate attorneys are available to assist you with questions about Florida’s new summary judgment standard and/or any other issues.


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Sharon Degnan, of our Orlando office, obtained an affirmance of a Motion for Summary Judgment in Camacho v. Wert & Rubber Applications, Inc., Case No. 2D18-3583 (Fla. 2d DCA 2020), which has been pending for nine years with one trial and two appeals. As background, the defense asserted the workers compensation immunity defense at trial, but ultimately, the trial resulted in a jury verdict of $1,870,484.40 for Plaintiff and $432,043.20 for Plaintiff’s spouse. Sharon handled the initial appeal and the case was reversed and remanded for “further proceedings on the [Plaintiffs’] complaint for negligence and vicarious liability in which [Defendants] may assert their defense of horizontal immunity under § 440.10(1)(e).” Based upon this language, Sharon filed a motion for summary judgment, and successfully argued it before a new judge who did not preside over the original trial. Plaintiffs appealed, but the appellate court agreed that the defense was entitled to summary judgment. To top it all off, proposals for settlements were filed as to both Plaintiffs in July 2013, so the Fee Judgment, if pursued, should be substantial.

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Caryn L. Bellus and Bretton Albrecht, of our Miami office, persuaded the Fourth District Court of Appeal to uphold a summary judgment in favor of an insurer in a first-party property loss. In Branford v. American Integrity Insurance Co. of Florida, 297 So. 3d 551 (Fla. 4th DCA 2020), the Fourth District Court of Appeal agreed that the insured’s failure to comply with multiple post-loss obligations in connection with her water loss claim, as well as her prior similar water loss claim with a different carrier, required judgment for the insurer despite the insured’s argument that the insurer was required, but failed to prove, that it was prejudiced by the noncompliance.

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Caryn L. Bellus and Angela C. Flowers, of our Miami and Ocala offices, respectively, successfully convinced the Fifth District Court of Appeal to affirm a final judgment for the insurer in a Hurricane Matthew property loss. In Pelecki v. Federated National Insurance Company, 2020 WL 4915804 (Fla. 5th DCA 2020), the appellate court found that the insurance company was entitled to a set off from the jury verdict for sums paid to a co-owner of the home pursuant to a proposal for settlement accepted during the lawsuit, resulting in a defense judgment. On appeal, Plaintiff also challenged an adverse directed verdict on a mold claim, the striking of her surprise expert testimony concerning mold, the admission of field adjuster photos, and a variety of other so-called evidentiary errors. Plaintiff further claimed that the trial court erred in refusing to give a concurring cause instruction and to shift the burden to the insurance company to prove the method by which water penetrated the house. The appellate court rejected all of Plaintiff’s arguments and affirmed the judgment in favor of the insurance company.

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Caryn L. Bellus, of our Miami office, Angela C. Flowers, of our Ocala office, and Barbara Fox, of our Miami office, prevailed in upholding a defense verdict in a nursing home wrongful death case in Jones v. Palm Garden of West Palm Beach, LLC, 2020 WL 5846434 (Fla. 4th DCA 2020). Our appellate team convinced the court to affirm a final judgment entered following a defense verdict finding that Defendant (the nursing home) was not responsible for the decedent’s death during his stay at the facility. Plaintiff’s claims sounded in negligence and statutory breach of the decedent’s rights as a nursing home resident, asserting that the nursing home failed to secure the facility and prevent the decedent from eloping despite allegedly knowing he was mentally impaired and at risk for escaping. On appeal, Plaintiff sought a new trial alleging various evidentiary errors, including her objection to the admission of evidence that the decedent died as a result of suicide. Our appellate team successfully argued that Plaintiff was competent and intentionally departed the property to commit suicide, evidence of which evidence was properly admitted at trial.

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Michael S. Walsh, of our Ft. Lauderdale office, obtained a very important denial of Plaintiff’s motion for summary judgment on the “billed amount” issue, a critical issue in PIP litigation. Specifically, Plaintiff filed a motion for summary judgment alleging underpayment and arguing that the insurer was required by 627.735 (5)(a)(5), Fla. Stat., to pay one hundred percent of the charges as opposed to eighty percent, even though the policy had no Medical Payment Coverage relying on Geico Indem. Co. v. Accident & Injury Clinic, Inc. a/a/o Frank Irizarry, 290 So. 3d 980 (Fla. 5th DCA 2019). Though the Judge previously ruled in favor of Plaintiff on the “billed amount,” Mike was able to distinguish the Fifth District Court of Appeal case as well as § 627.736 (5)(a)(5), by focusing on the permissive language of “may” versus the mandatory language of “shall,” and successfully convinced the judge to reverse his prior ruling. Mike also pointed out that for the in question, Plaintiff always demanded eighty percent of the charges, but years later, sought more.
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Sarah R. Goldberg, of our Miami office, successfully argued a motion for summary judgment on a Hurricane Irma claim. Plaintiff entered into an agreed order moving the case to an appraisal. The carrier paid the appraisal award timely. After the appraisal award was paid, Plaintiff alleged that not all claims had not been resolved by the appraisal and requested supplemental payments for alleged mold damages. Ultimately, the judge was persuaded by Sarah’s argument that Plaintiff cannot bring a supplemental claim for mold damages post-appraisal because Plaintiff signed an assignment agreement whereby Plaintiff’s right to damages for mold remediation were fully assigned to a mold remediation company. The court did not give any weight to Plaintiff’s arguments that the assignment agreement to the mold remediator was invalid as the mold remediation company had been paid in full and had executed a release for claims of mold remediation. The victory was sweetened by the fact that Plaintiff filed a sanctions motion against the carrier and Sarah in order to get them to withdraw the motion for summary judgment the week prior to the hearing.
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Sarah R. Goldberg, of our Miami office, obtained a voluntary dismissal on a denied Hurricane Irma claim. Plaintiff testified at his deposition that he placed a tarp on his roof following Hurricane Irma to mitigate his damages. Sarah researched historical, aerial photographs of the property, which showed that a tarp was placed on the roof for at least one year prior to Hurricane Irma. A motion for summary judgment was filed, with support of an engineer’s affidavit, setting forth that the tarp was on the roof prior to the storm and that the interior leaks pre-dated Irma. Plaintiff folded under the pressure and leverage filing a voluntary dismissal just a few days prior to the hearing on the summary judgment and the night before the public adjuster’s deposition.
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Scott Simon, of our Miami office, obtained a voluntary dismissal in a PIP case. Scott deposed Plaintiff’s corporate representative who admitted there was no evidence to demonstrate that Plaintiff treated within 14 days of the accident. Scott asked for a dismissal, and plaintiff refused. Scott filed a motion for summary judgment and unilaterally set it for hearing after opposing counsel refused to cooperate. Unsurprisingly, Plaintiff moved to continue the summary judgment hearing, claiming they had an affidavit from someone who would provide sworn testimony that treatment took place within 14 days. Scott fought the continuance arguing that Plaintiff had months to obtain this alleged affidavit, and although the judge granted the continuance (due to Plaintiff’s questionable COVID-19 arguments), Scott convinced the judge to require Plaintiff to identify the alleged witness and the content of the affidavit at the continuance hearing, and Scott set the witness for deposition promptly thereafter. Opposing counsel refused to provide the necessary information to serve the witness, but Scott did not relent – he tracked her down and had her served while simultaneously pressuring opposing counsel with his motion for summary judgment. After six years of litigation, Plaintiff dismissed the case with prejudice.
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Caryn L. Bellus, of our Miami office, prevailed in upholding a final summary judgment in a premises liability case obtained at the trial level by Charles F. Kondla, also of our Miami office. In Griffis v. Regal Cinemas, Inc., No. 2D19-1856, 2020 WL 6537806 (Fla. 2d DCA Nov. 6, 2020), the Second District Court of Appeal affirmed the final summary judgment determining that Plaintiff failed to meet his burden of proof by showing circumstantial evidence that Regal Cinemas had actual or constructive notice under §768.0755, Florida Statutes. On appeal, Plaintiff argued there were genuine issues of material fact concerning constructive knowledge of a substance on the floor outside the theater’s box office. The Second District rejected Plaintiff’s arguments and affirmed the judgment in favor of Regal Cinemas finding that Plaintiff failed to present evidence that the substance existed for a sufficient length of time such that Regal Cinemas knew or should have known of it and that Plaintiff further failed to plead that the condition occurred with regularity, and was therefore, foreseeable.
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Sharon Degnan, of our Orlando office, recently prevailed in upholding a final summary judgment obtained at the trial level by David Drahos, of our West Palm Beach office. In Ferrer v. Jewelry Repair Enterprises, Inc., No. 4D19-2747, 2021 WL 191464 (Fla. 4th DCA January 21, 2021). Our client, a franchisor with storefronts and kiosks located throughout several states, was sued by a former employee of one of its franchisees. The franchisee employee suffered serious injuries after being shot by the franchisee’s owner, who then turned the gun on himself in an attempted murder/suicide occurring in the franchisee’s store. The main argument pursued by the franchisee employee was that our client maintained control over the franchisee and failed to recognize the risk to employees and fire the franchisee’s owner before the shooting. However, both the trial court and the Fourth DCA determined that, pursuant to the clear language in the Franchise Agreement governing the relationship between the parties, the franchisor did not maintain any substantial control over the franchisee’s day-to-day operations or its owner and that the franchisor’s control was limited to the uniform standardization of products and services and providing regular and ongoing support for its franchisees. Sharon argued on appeal—and the Fourth DCA agreed—that the franchisee operated independently of the franchisor, with our client having no authority to hire and fire its franchisee’s employees. The court recognized that these types of franchise agreements are common throughout Florida and often contain similar language limiting the franchisor’s control over its franchisees.
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Sarah R. Goldberg, of our Miami office, won summary judgment on a Hurricane Irma claim. Plaintiff entered into an agreed order moving this case to an appraisal, and the carrier timely paid the appraisal award. After the appraisal award was paid, Plaintiff argued that not all claims had not been resolved by the appraisal and requested supplemental payments for alleged mold damages. The trial judge heard arguments for over an hour and ultimately agreed with Sarah that Plaintiff cannot bring a supplemental claim for mold damages post-appraisal because Plaintiff signed an assignment agreement for mold remediation services to a mold remediation company. The mold remediation company was paid in full for their services and executed a Release for claims of mold remediation. The Court did not give any weight to Plaintiff’s last-ditch efforts to argue that the assignment agreement was invalid.
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Kimberly A. Beckwith, of our Tampa office, obtained a defense verdict in a case for property damage, lost wages, and mental anguish. The client drove off the road and crashed through Plaintiff’s fence, garden, truck, and landed squarely in the middle of Plaintiff’s mobile home. Luckily, no one was hurt, but our client was arrested for DUI. Plaintiff sued Defendant in small claims court claiming property damage, mental anguish, and lost wages. Kim filed a motion to dismiss outlining the numerous deficiencies with Plaintiff’s claims, including that 1) since he was not injured, his claim for mental anguish is barred, and 2) his claim for 6 weeks of lost wages was without support. Kim persuasively argued that Plaintiff voluntarily took off from work to repair some of the damage, that a hand-written letter from his employer regarding Plaintiff’s pay rate was inadequate to establish damages. At trial, Plaintiff attempted to add to his damages by claiming additional losses of personal property to which Kim quickly shot down by pointing out that he previously signed a property damage release. The Judge gently explained to Plaintiff that his case was flawed and ruled in favor of our client, entering a complete defense verdict.
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Benjamin Cohen, of our Ft. Lauderdale office, was retained to defend a law firm and two of its attorneys, individually, against a motion for sanctions under § 57.105, Fla. Stat. brought by a commercial attorney that the firm had sued for defamation. The attorney sought six figures in fees from the law firm and its attorneys claiming that there was no legal basis for bringing the claim. The case involved allegations of tortious interference, defamation, and other causes of action and the Defendant lawyer was asserting that his publications, if any, were subject to and protected by the absolute litigation privilege as they were made to clients or prospective clients within the course and scope of his actual or prospective representation. At a contentious evidentiary hearing on the issue, Ben was able to convince the Judge that the published communications were not made within the course and scope of the Defendant attorney’s actual or prospective representation, and thus, the communications were not subject to the litigation privilege.
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Travis J. Beal, of our Ft. Lauderdale office, won a Daubert motion and corresponding Motion in Limine in a toxic-tort case successfully excluding Plaintiffs’ expert’s causation opinions. Specifically, the court ruled that “without reliable information about the actual levels of exposure, any opinion [the neuropsychology and neurotoxicology expert] could offer linking Plaintiffs’ exposure to the products used in the renovations with particular health outcomes is unreliable and speculative.”

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Jonathan O. Aihie, of our Miami office, won the firm’s first virtual motion for summary judgment. By way of background, the insurance carrier accepted coverage in a plumbing leak case and issued payment in the amount of $10,000 for the insured’s property damage. The insured never requested any supplemental payment before filing suit, so there was no breach of contract. Thereafter, Jonathan deposed the insured who testified that it only cost $4,000 to complete the repairs. Jonathan then filed a motion for summary judgment because the insured could not prove damages to support his breach of contract lawsuit. Plaintiff’s dilatory response attached a $49,000 estimate and photographs, but the documents were unsworn, and Jonathan moved to strike them accordingly. The court declined to consider the response and granted the motion for summary judgment.

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Jill Aberbach, of our Ft. Lauderdale office, was granted final summary judgment in a consolidated case brought by the insured and the AOB. The denial was based on a no peril created opening that had been going on for way too long. Plaintiffs tried every delay tactic possible to keep the motion from being argued. At the hearing, Plaintiffs argued that summary judgment should be denied because there was a question of fact, notwithstanding she admitted that she never saw water coming through any opening after the subject storm. Further, Jill successfully argued Plaintiff’s expert was not credible since they inspected the property too long after the incident.


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