UPDATED INFORMATION FOR FLORIDA COURTS

STATE COURTS

A Message from Chief Justice
[https://youtu.be/l6BQnv1w9Bw]
03/24/2020 AOSC20-17:
[https://www.floridasupremecourt.org/content/download/632431/7186205/AOSC20-17.pdf]
[https://www.floridasupremecourt.org/Emergency]
• Jury trials suspended through April 17,2020
• Presently ongoing trials may continue at the trial court judge’s discretion
• AOSC20-13, AOSC20-15, and AOSC20-16 in effect until April 17, 2020
• Notaries may swear a witness remotely by audio-video communication technology from a location within the State of Florida, provided they can positively identify the witness
• If a witness is not located within the State of Florida, a witness may consent to being put on oath via audio-video communication technology by a person qualified to administer an oath in the State of Florida

FLORIDA SUPREME COURT

INTERMEDIATE APPELLATE COURTS

FIRST DISTRICT COURT OF APPEAL

SECOND DISTRICT COURT OF APPEAL

THIRD DISTRICT COURT OF APPEAL

FOURTH DISTRICT COURT OF APPEAL

FIFTH DISTRICT COURT OR APPEAL

CIRCUIT AND COUNTY COURTS

FIRST JUDICIAL CIRCUIT

SECOND JUDICIAL CIRCUIT

THIRD JUDICIAL CIRCUIT

FOURTH JUDICIAL CIRCUIT

FIFTH JUDICIAL CIRCUIT

SIXTH JUDICIAL CIRCUIT

SEVENTH JUDICIAL CIRCUIT

EIGHTH JUDICIAL CIRCUIT

NINTH JUDICIAL CIRCUIT

TENTH JUDICIAL CIRCUIT

ELEVENTH JUDICIAL CIRCUIT

TWELFTH JUDICIAL CIRCUIT

THIRTEENTH JUDICIAL CIRCUIT

FOURTEENTH JUDICIAL CIRCUIT

FIFTEENTH JUDICIAL CIRCUIT

SIXTEENTH JUDICIAL CIRCUIT

SEVENTEENTH JUDICIAL CIRCUIT

EIGHTEENTH JUDICIAL CIRCUIT

NINETEENTH JUDICIAL CIRCUIT

TWENTIETH JUDICIAL CIRCUIT

FEDERAL COURTS

SUPREME COURT OF THE UNITED STATES

ELEVENTH CIRCUIT OF APPEALS

NORTHERN DISTRICT OF FLORIDA

MIDDLE DISTRICT OF FLORIDA

SOUTHERN DISTRICT OF FLORIDA

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Stuart Poage, of our Tallahassee office, is available for telephonic mediations throughout Florida. To schedule, please contact Stuart at (850) 521-8530 or by e-mail at sp@kubickidraper.com.

Certified Florida Circuit Civil Mediator
Florida Supreme Court-Approved Arbitrator
Panelist - American Arbitration Association National Roster of Arbitrators
Construction Arbitration Panel Member, American Arbitration Association
  

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In the wake of the emergence of the Coronavirus, our firm wants to assure our clients that we have contingency plans in place to ensure operations continue and client services are not impacted.

The Kubicki Draper team will remain fully accessible and responsive to all client needs. Although trials are suspended in Florida for two weeks, we are working to secure permission for video/phone appearances for court hearings, depositions and mediations, when necessary.
 
We extend our sincere appreciation for your partnership, and thank you for your support and patience as we navigate this together.

For more information and/or questions, we are here for you. Please contact us at info@kubickidraper.com.



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House Bill 7071 and Florida Senate Bill 914 provides that for certain attorney fees awarded for claims arising under property insurance policies, a strong presumption is created that a lodestar fee is sufficient and reasonable, providing that such presumption may be rebutted only under certain circumstances. 

A “lodestar fee” is the amount of attorney’s fees calculated by an attorney’s reasonable hourly rate and the amount of reasonable hours spent by the attorney. This bill may allow for a contingency fee multiplier to be applied to increase the fees ultimately awarded only when certain factors are present.

On March 5, 2020, the House approved the Bill. It is now pending before the Senate. If the Bill passes, it will become effective on July 1, 2020. Kubicki Draper is monitoring the Bill’s progress and will update you on important developments. 

 

 

 

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The Third District Court of Appeal holds Florida's PIP statute prevents reimbursement of services performed by a licensed massage therapist that are not “massage” as defined by §480.033(3), Fla. Stat. Geico General Ins. Co. v. Beacon Health Care Ctr. Inc., 2020 WL 912938 (Fla. 3d DCA Feb. 26, 2020). 

Want to know more? Contact Caryn Bellus.


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We are happy to announce KD has been named as a "Top Law Firm" by South Florida Legal Guide.

In addition to this honor, the following KD attorneys were included in the 2020 edition of South Florida Legal Guide’s "Top Lawyers":
 
Laurie J. Adams – Civil Litigation
Peter S. Baumberger – Professional Liability – Defense, Corporate and Business Litigation
Caryn L. Bellus – Appellate, Insurance
Michael J. Carney – Civil Litigation

South Florida Legal Guide’s Top Law Firms and Top Lawyers listings are published annually and are based on peer nominations. Nominees are evaluated on accomplishments and individual credentials prior to being named to the list.



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Congratulations to Shirlarian N. Williams, of our Ft. Myers office, who was sworn in as the new President-Elect for the Lee County Bar Association’s Young Lawyer Division!  We are proud of Shirlarian and look forward to supporting her new role.



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Jennifer Remy-Estorino is a Shareholder in Kubicki Draper’s Miami office. Jenny’s career began while working in house for one of the largest insurance carriers in the U.S. While Jenny has focused her career on trial practice, she also has experience in appellate law, writing appellate briefs and petitions, and arguing before the Third District Court of Appeal before joining Kubicki Draper in July 2008.

From a young age, it was clear to everyone that Jenny’s vivacious personality and thoughtful expressiveness would someday serve as some of her best assets in her future career; and she dreamed of a career in law or theater. As a young woman, Jenny obtained her undergraduate degree in Broadcast Journalism from Florida International University where she further refined her communication skills and her ability to captivate her audiences in a coherent and engaging way. While a career in journalism appealed to Jenny, she was determined to capitalize on these skills to pursue her childhood dream of becoming a successful attorney. Jenny proceeded to obtain her Juris Doctorate degree from Florida International University as a part of the University’s 2005 graduating inaugural class.

Jenny’s talents have clearly served her well; she takes pride in the fact that she has successfully developed a diverse legal practice over her past eleven years at Kubicki Draper while defending a wide-range of cases in both state and federal court, including: automobile negligence; premises liability; construction defect; intellectual property; insurance bad faith/coverage disputes; negligent security; commercial litigation; and first-party property cases. Jenny attributes her professional success to her personality and ability to communicate and work with her clients and opposing counsel: “the key is to initiate and maintain an open line of verbal communication.” According to Jenny, this open line of communication and her attention to detail enable her to spot issues early on and work with others to quickly resolve (what could otherwise be) stressful situations that often arise during litigation. Along these lines, Jenny, who is Cuban American, further uses her bilingual capabilities as another tool to assist her Spanish-speaking clients navigate through the litigation process as well as an avenue to develop relationships.

When Jenny leaves the office at the end of each day, her work for the day is far from over. Jenny and her husband, Julio, are parents to two small children: Madison, who is three and a half years old, and Jacob, who is one and a half years old. For Jenny, nothing is more important than maintaining a healthy work-life balance, which, she confesses, “is a juggling act.” Jenny is able to make it work because she has established a resilient support system and is dedicated to surrounding herself with strong relationships with her family and friends. With Jenny’s mindset, drive, and talent, her success comes as no surprise to anyone.  

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We are proud to announce Rebecca L. Brock is the new president of the American Board of Trial Advocates (ABOTA), West Palm Beach Chapter.

ABOTA is a national association of experienced trial lawyers and judges dedicated to the preservation and promotion of the civil jury trial right. ABOTA is an invitation-only organization and members must have at least five years of active experience as trial lawyers, have tried at least 10 civil jury trials to conclusion and possess additional litigation experience. Members must also exhibit the virtues of civility, integrity and professionalism.



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Charles Watkins attended the Galleon Foundation Charity Gala and Awards Dinner. The Galleon Foundation's mission is to provide assistance to financially disadvantaged children at schools in the Caribbean and USA through scholarship and mentorship programs. At the gala, Charles awarded a joint scholarship to the Florida Memorial University from Kubicki Draper and his mother's endowed Scholarship Fund -- Kathleen B. Watkins Scholarship Fund. He also presented The Galleon Foundation’s Distinguished Community Service Award to Linda Mackey, Consul General of the Bahamas.


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Laurie Adams and her son, Ryan, team captains for “Ryan’s Raiders,” helped raise over $9,000. These funds will help JDRF continue their search for a cure and for better ways to help make living with Type 1 Diabetes safer and healthier. For more information, or to donate, please visit JDRF.




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Shirlarian Williams, of our Ft. Myers office, recently participated in Franklin Park Elementary School’s Annual Black History Read-In. She read a book to a kindergarten classroom and talked to the class about being a lawyer.



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Caryn L. Bellus, of our Miami office, will be participating on a panel at the American Bar Association’s Annual Insurance Coverage Litigation Mid-Year Conference in Phoenix, AZ on February 21, 2020. She will be co-presenting “Civility Matters: Managing and Resisting the Temptation Toward Aggressive and Bad Behavior in Practice” with Gary Gassman, John Reitwiesner, Kristine Tejano Rickard, and the Honorable James Smith. The topic will examine the effects of uncivil and aggressive behavior in the practice of law on the legal profession and the justice system.

The conference brings together a diverse group of leaders and insurance professionals, from coverage counsel to insurers to in-house risk managers and policyholder specialists, to discuss the key hot topics in insurance coverage to provide attendees an opportunity to engage in and learn about a wide array of emerging issues affecting this industry. For more information about the conference and/or to register click here.



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Save the date to join Kubicki Draper for an all-day Construction Conference in Tampa, Florida!

The complimentary event is designed to provide claims professionals with valuable information that will assist them in their claims handling and management. The program will begin at 8 am and will include lunch. Guests are invited to stay for a cocktail reception immediately following the seminar.

Registration and Florida CE/CLE information to follow.

To ensure you are on the mailing list for additional information, please e-mail: construction@kubickidraper.com.



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It was an honor and a pleasure for Kubicki Draper to support the National African American Insurance Association,(NAAIA), Florida Chapter's  Fall Meeting recently #NAAIA. Charles Watkins, Anthony Atala and Charles Kondla put on a great presentation about Insurance bad faith avoidance, and Brad McCormick participated on a panel led by Maria Abate that presented “Unleashing the Power of Diversity.” Brad and fellow panelists Maria Dantes-Sanchez, Linc Rogers and Ravi Parekh talked about the importance of promoting #diversity and #inclusion in the insurance and legal professions. Michael Chang, CEO for Sompo Global Risk Solutions, gave an inspiring Keynote presentation about everything from developing a personal brand to being proactive about hiring diverse talent.  Overall what a fantastic event! We were so proud to be a part of it and look forward to more exciting times to come.

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Charles Watkins recently attended the National African American Insurance Association's (NAAIA) Annual Conference and Empowerment Summit in Atlanta, Georgia. The NAAIA was organized to create a network among people of color and others employed in or affiliated with the insurance industry. Charles serves as Treasurer of the NAAIA’s Florida Chapter and KD is proud to support all of his efforts to help grow the organization. Please visit NAAIA for more information. Photographed below: Trelvis Randolph, Sha'Ron James, Charles Watkins, Sharlee Hobbs Edwards, Maria Abate, and Soraya Regalado.



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Jennifer L. Feld, of our Tampa office, was a keynote speaker at the Hillsborough Association for Women Lawyers Membership Luncheon on September 11 at the University Club of Tampa. She presented “Effective Solutions for Supporting & Promoting Women Lawyers.” For more information, please visit HAWL.

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Kubicki Draper is a proud sponsor of the ChildNet Care for Kids Luncheon taking place on April 9, 2019 in Palm Beach. ChildNet is a Community-Based Care lead agency in Palm Beach and Broward Counties, which means it is responsible for the administration of the local child welfare system. Their mission is to protect abused, abandoned and neglected children throughout the community. Rebecca Brock of our West Palm Beach office is on the Board of Directors and will be attending the luncheon. Proceeds from the luncheon are used to directly help the children in foster care. They may be used to pay for dental work and medical treatment not covered by Medicaid, as well as activities to provide some semblance of normalcy like being able to attend a school field trip or participated in extracurricular enrichment activities. For more information about the agency or to donate please visit: https://www.childnet.us/how-help.
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It is our pleasure to invite all claims professionals to our First Party Property Conference on April 26 in Tampa, Florida!

The event is complimentary and is designed to provide guests with information that will assist them in claims handling and management.

All courses have been approved by the State of Florida, and attendees will be eligible to receive up to six Florida Continuing Education Credits.

The great program we have lined up is as follows:

Playing Roulette with Policy Conditions

Speakers: Valerie Dondero and William Sabinson

This course will provide an overview of an insured’s obligations under a property insurance policy after a loss occurs and once the claim is submitted to the carrier. Guests will learn how a failure to comply with those obligations can affect coverage and any subsequent litigation, and why it is important to understand the applicable legal principles at the adjusting level of handling the claim.

 

Florida Hold 'Em Poker: Evaluating and Defending Attorney Fee Claims

Speakers: Michael Balducci, Caryn Bellus, Michael Clarke and Jarred Dichek

This course will teach insurance professionals how to evaluate and defend attorney fee claims. It will include an overview of procedures and practices and will go over how to assess hours and rates claimed, fee entitlement and how to contest the claim presented under the applicable law.

 

CRAPS - Civil Remedy Anatomy, Protocols, and Solutions

Speakers: Bretton Albrecht and Stefanie Capps

This presentation will provide a basic primer on civil remedy notices of insurer violations (CRNs) under Florida’s bad faith statute, §624.155, Fla. Stat. It will address what they are and why they are important, as well as the requirements for a CRN and CRN responses. It will also touch on the confession of judgment rule and its relationship to “curing” a CRN.

 

Virtual Slots: Technology Solutions for First-Party Coverage and Claims

Speakers: Kara Cosse and Daniel Mercher, P.E. of Focus Forensics

This panel discussion and presentation will focus on the use of modern technology including 3D scanners, drone, and computer animation to assist property insurers, their insureds, and defense counsel in firs-party matters beginning with the underwriting process, through anticipated loss analysis, and resulting insurance claims and litigation. The changing world and decreasing cost of technological aids have changed the way properties are designed, insured, forensically analyzed, and litigated. Examples of some of the new tools and their applications will be shown as part of the presentation.

 

Blackjack! - 25% (Not “21”) on Litigating Roofing Claims

Speakers: Jonathan Aihie, Jessica Murray and Stephanie Seligman

The course will provide an overview of how to maneuver through and properly adjuster a roofing claim, how to issue spot and address roofing issues within a public adjuster’s estimate and field adjuster’s estimate, how to calculate a roof replacement, when repair is a viable option and what you should expect from your field adjuster on any roofing claim.

 

At the End – The House Always Wins: Analyzing & Determining Coverage for Wind & Water Damage Claims

Speakers: Anthony Atala, Sarah Goldberg and Katherine Moon

This presentation will focus on analyzing whether a loss is the result of wind and/or rain to assist claims examiners, insurance industry professionals and defense counsel in first-party homeowners and commercial matters to properly analyze the cause of damage, particularly for a Hurricane loss, and make an early determination as to coverage. The course will also address evolving case law in the area of concurrent causation and valued policy law, which should be considered in determining whether a loss is covered under a homeowners or commercial insurance policy.

Space is limited, so register today!

For questions or registration information, please contact Aileen Diaz at ad@kubickidraper.com.
 

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We are pleased to announce Valerie Dondero and Nicole Wulwick, of our Miami office, presented at the American Inns of Court (Spellman-Hoeveler Chapter) Bench & Bar Conference on March 1, 2019. Nicole presented on "Taking the Winning Deposition" and Valerie covered "Bad Faith Fees in Insurance Litigation." The conference took place at the Hyatt Regency Miami and was attended by federal and state judges and the top attorneys across Florida.

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IN THIS ISSUE:

• KD in the Community
• Florida Legislature Passes New Law Creating Right of Contribution Among Liability Insurors for Defense Costs
• KD News
• Spotlight on: Jennifer Remy-Estorino
• The GDPR: Catering to Privacy in the Hospitality Industry
• Recent Results: Appellate, Trials, Motions, Mediations
• Presentations and Speaking Engagements
• News / Announcements

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IN THIS ISSUE: 

• KD in the Community
• Fighting Attorney's Fees Following Appraisals
• Spotlight on: Michael Suarez
• New Additions
• FYI Articles of Interest
• Recent Results: Appellate and Trials, Motions, Mediations
• Presentations and Speaking Engagements
• KD News
• 2019 Super Lawyers and Rising Stars
• Annoucements / News

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IN THIS ISSUE:

• KD in the Community
• KD's Tampa Conference
• Contracting Concerns: Exposure for the Acts or Omissions of Subcontractors
• Spotlight On: Ken Oliver
• New Additions
• The Curious History of Florida Statute §46.021
• 2019 KD Top Lawyers
• Recent Results: Trials, Motions, Mediations
• KD News
• Presentations & Speaking Engagements
• Annoucements/News

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Jessica Murray, of the Tampa office, recently prevailed by obtaining summary judgment for a homeowners’ insurer. The decision is a step forward enforcing  insureds’ compliance with the requirements of a policy’s terms, conditions and post-loss obligations.
 
The case involved two separate water losses, reported to the carrier on the same day. During the carrier’s initial inspection, it requested the insured’s in person recorded statement. The insured refused an in-person recorded statement, but offered a telephonic statement. The insured ultimately refused on six separate occasions. The insured also failed to appear to her examination under oath on three separate occasions, and thereafter filed suit. The carrier moved for summary judgment, the insured countered she offered a telephonic statement which the carrier refused, and thus the carrier did not satisfy its burden to show it had been prejudiced. Jessica arguing recent case law showed it was the burden of the insured not the insurer to show prejudice. The trial court was persuaded by Jessica’s arguments and entered summary judgment for the insurer. Thus, the trial court held that the insured’s failure to provide an in-person recorded statement was a material breach  entitling the insurer to summary judgment.

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Michael Balducci and Lillian Sharpe of the West Palm Beach office received a summary judgment in an ATV rollover case that occurred in a hunting camp when two teenagers jumped in the ATV and flipped it.  The plaintiff shattered his leg and sustained back injuries that allegedly will require surgery.

Michael and Lillian were able to show there was no vicarious liability as there was no express or implied consent to operate the vehicle by their client, who was in charge of the camp and had the right to use the vehicle, and may have even been a part owner as he contributed to its maintenance costs.

Plaintiff sought strict liability under a statute that makes it a violation to leave the keys in the ignition of an unattended motor vehicle, but Michael and Lillian were able to show that this particular off road vehicle did not qualify as a “motor vehicle” under the statute, and further, the fact that the incident occurred on private property precluded the application of the statute which was designed to protect members of the public on public highways.
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The case, involving a minor plaintiff who is the daughter of the plaintiff attorney, and who suffered serious injury to her knee, low back and neck, began at KD when Sharon Degnan, in the Orlando office, and Laurie Adams and Melonie Bueno, in the West Palm Beach office, were asked to take over the defense of a UM case that was set for trial, had a pending summary judgment motion filed against the insurer, as well as several discovery sanction hearings coming up. While it originally looked bleak, Sharon successfully developed and raised a UM coverage defense of first impression in Florida, to which multiple trial judges agreed, as well as the Fourth District Court of Appeal– that a plaintiff is not entitled to UM coverage when a vehicle is used as a premises.

The negligence claim against the tortfeasor in the UM case alleged negligent personal training in a Mobile Gym.  Without Florida case law on point, Sharon argued that an exclusion in the policy, which excluded from the definition of “uninsured auto” a “land motor vehicle . . . located for use as a . . .residence or premises” applied to preclude UM coverage from being owed since the Mobile Gym was not being used as a motor vehicle, but rather as a premises—a gym—while plaintiff was weight training.  See opinion HERE.

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Kudos to Colleen Kerins of our Ft. Myers office for obtaining a complete defense verdict in an arbitration involving assignment of benefits (AOB). Colleen argued the AOB did not apply to the replacement of a screen enclosure cage and a garage door based on the language contained in the assignment of benefits, and the arbitrator agreed.
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Sharon C. Degnan, of the Orlando office, won an appeal in the Fourth District Court of Appeal wherein she successfully defended a summary judgment in favor of a grocery store in a transitory foreign substance case in Guevara v. Winn-Dixie Stores, Inc., No. 4D18-936 (Fla. 4th DCA Apr. 4, 2019). The plaintiff had argued that there was an issue of fact for the jury as to whether the defendant had constructive notice of the existence of water on the floor of the produce department, which allegedly caused Plaintiff to slip and fall. In affirming the summary judgment, the appellate court was persuaded by Sharon's argument that the plaintiff's theory as to how the water got onto the floor and the length of time that it was there was completely speculative and, in order to be accepted, required improper inference stacking and disregard for the plaintiff's prior testimony. Based on the appellate court’s affirmance, the defendant’s motion for appellate attorney's fees was granted.
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Caryn L. Bellus, Bretton C. Albrecht, and Barbara Fox, of the Miami office, prevailed in obtaining an affirmance of the defense summary judgment entered in favor of a PIP carrier, in a county to circuit appeal, where the carrier defended based on a material misrepresentation defense.

At the trial level, the carrier’s staff counsel won a defense summary judgment holding it was entitled to rescind the policy and deny coverage for the Plaintiff’s medical provider’s PIP claim based on the named insured’s material misrepresentation in failing to disclose her college-age son in the policy application. The accident had occurred while the son was driving one of the insured vehicles just a couple months after the policy was purchased without ever disclosing that he existed.

In the appeal, Plaintiff argued material misrepresentation was a disputed question of fact for a jury, including because there was evidence the insurance agent failed to ask the insured about other household residents and there was no evidence from the insurance agent about what was asked. As to materiality, Plaintiff argued it was unknown whether the son had a drivers’ license at the time of the policy application and further asserted that if the son was unlicensed he could not be considered a ‘driver,’ which the policy did not specifically define. Plaintiff raised several other similar arguments in an attempt to muddle the facts and issues.

In response, Caryn, Barbara, and Bretton emphasized that the insured had testified in deposition that the agent did not ask her ‘anything.’ She also admitted for example that: (a) her son was over the age of 15, (b) he had always lived with her, including at the time of the policy application, (c) she in fact signed the policy application, and (d) she did not disclose her son in the policy application. Her only ‘excuse’ was that the insurance agent allegedly did not ask her “any” of the questions on the application. Notably, however, she did not testify that she had any issues reading or understanding the application or that the agent in any way prevented her from reading the application or misrepresented its contents. At oral argument, Bretton argued that undisputed facts such as these readily distinguish this case from those relied upon by Plaintiff. She further argued and emphasized that the insured had a duty to read the policy application and to ensure the information in it was true and correct before signing. In contrast, the agent had no duty to read the whole policy application to the insured.

With regard to the materiality of the misrepresentation, they explained that subject policy application clearly required disclosure of all household residents age 15 or older, licensed or not. Then there were only two options—they must be listed as either a covered or excluded driver on the policy—and an additional premium would be charged either way.

After oral argument, the appellate panel of the 11th judicial circuit agreed and per curiam affirmed the defense summary judgment. It also granted our motion for appellate attorney’s fees.

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Bill Bissett obtained an appellate victory in a wrongful death case in which our client obtained a summary final judgment on the basis of the so-called Slavin doctrine. The summary judgment in the case was initially appealed to the Third District Court of Appeal and resulted in an affirmance, as to which the personal representative then unsuccessfully sought further review in the Florida Supreme Court. Valiente v. R. J. Behar & Co., et al, 254 So. 3d 544 (Fla. 3d DCA 2018), review denied to Valiente in Florida Supreme Court, April 8, 2019, Case #SC2018-1756.

This wrongful death case arose out of the decedent/motorcyclist colliding with another vehicle at an intersection in Hialeah, Florida. Prior to the accident, this intersection had undergone significant roadway and landscaping improvements. The personal representative thereafter filed a lawsuit against not only the person driving the auto, but also against the City of Hialeah, against the roadway contractor, against the consulting engineers, and against our client, who was hired to install certain landscaping as part of the improvement project.

The plaintiff alleged our client and the other defendants negligently created and allowed to thereafter exist a “visual obstruction” at the intersection and this negligence was a contributing legal cause of the accident. Three of the defendants moved for summary judgment based on the Slavin doctrine, which relieves a contractor of liability for injuries to third parties when it is established: (a) that the contractor’s work was completed; (b) that the owner of the property (in this case, the City) accepted the work; and (c) that the alleged defect/dangerous condition allegedly causing the injury later in time (here, 2 years) was “patent” at the time the owner accepted the work.

These types of cases frequently end up being tried, with the jury determining whether the alleged defect/dangerous condition was “patent” or “latent.” Bill argued the appeal in June, 2016, and on June 6, 2018, the Third District rendered its 31 page (2-1) opinion agreeing with the arguments Bill and the other defense counsel presented in their briefs and at oral argument. Valiente v. R. J. Behar & Co., et al, 254 So. 3d 544 (Fla. 3d DCA 2018). Since the appellate court had consolidated all three appeals as to the summary judgments obtained by Melrose and the engineers and the roadway contractor, Bill ended up primarily presenting oral argument on the Slavin issue, with the other two defendants presenting their own separate, independent arguments.

It was essentially claimed that our client initially created the “visual obstruction” in planting Jatropha Hastata shrubs in the swale area of the intersection where the accident occurred and that the specific placement of the shrubs and their height at the time violated various codes and regulations. In ruling in our favor, the majority opinion applied the standard that the property owner is required to have made a “reasonably careful inspection” of the contractor’s work prior to accepting it as completed, and further stating that “the liability of a contractor is cut off after the owner has accepted the work performed if the alleged defect is a “patent” defect which the owner could have discovered and remedied.” Valiente, 254 So. 3d at 546-52.

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Angela C. Flowers, of the Ocala office, and Bretton Albrecht, of the Miami office, obtained a reversal of a Final Judgment on damages entered following a jury trial in an automobile negligence case. The appellate court agreed with Defendant that the trial court improperly granted summary judgment on liability, thereby depriving Defendant of his comparative negligence defense.

The decision clarifies the limitations of Florida’s existing common law rule imposing a rebuttable presumption of sole negligence on the driver of a rear-following vehicle involved in a rear-end collision. The court clarified that the presumption does not completely insulate a negligent lead driver from liability for comparative negligence as a matter of law. Rather, where issues of disputed fact exist regarding the lead driver’s fault, negligence and causation are jury questions. On remand, the case will be retried on the issues of both comparative negligence and damages.

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Caryn L. Bellus and Barbara Fox, of the Miami office, obtained a hard fought victory for the Ranching and Agriculture industry in Carnahan v. Norvell, 2019 WL 1781647 (Fla. 4th DCA Apr. 24, 2019). Following a jury trial handled by outside counsel, the jury returned a complete defense verdict of no liability in favor of a cattle owner whose animals strayed onto public road and caused an automobile accident. The Plaintiff sought a new trial and after its denial, appealed. In a rare written opinion affirming the lower court denial of a new trial, the Fourth District Court of Appeal affirmed.

For the first time in many years, the Fourth District Court addressed Florida’s Warren Act, Section 588.15, Florida Statutes, and affirmed that it does not impose strict liability on an owner for accidents caused by straying livestock, absent a showing that injuries are due to the owner’s intentional, willful, careless or negligent actions in permitting the livestock to ‘stray upon’ public roads. Specifically, the court held that the mere incidence of livestock on public roads was insufficient to demonstrate the required negligence. Of equal legal import, the Fourth District held that to demonstrate such negligence, not all incidents of cattle straying from the premises are admissible but rather only incidents which are substantially similar. Further, in a holding which has far reaching implications across the board, the Court held that in order for a party to properly preserve error as to the exclusion of evidence, it must proffer to the court the specific evidence which it seeks to introduce and cannot later rely on evidence which was found in record but not specifically referenced before the trial court.

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Stefanie D. Capps and Kristin L. Stocks, of the Ft. Myers office, obtained a defense verdict on liability after 17 minutes of deliberations in a bicyclist/auto accident case where the plaintiff had back surgery, $102,000.00 in medical bills, and a recommendation for neck surgery that could not occur due to a risk of blood clots. Plaintiff was attempted to be portrayed as sympathetic due to his Dementia which had progressed since his deposition was taken and was an alleged reason for his many inconsistencies that Stefanie skillfully and softly brought out during closing to avoid the risk of resentment by the jury for hammering a poor soul.
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