The Florida Supreme Court recently issued its much-awaited decision in Citizens Property Insurance Corporation v. Manor House, LLC, SC19-1394, 2021 WL 208455 (Fla. Jan. 21, 2021). The holding is monumental and the importance far-reaching. The full decision is available at: https://www.floridasupremecourt.org/content/download/714811/opinion/sc19-1394.pdf

The case arises from a property damage claim reported under a policy of insurance issued by Citizens following Hurricane Frances in 2004. The Citizens policy insured nine apartment buildings owned by Manor House that were damaged by the hurricane. Citizens issued significant payments for repairs in the course of the claim and additional payments after receiving a request to reopen the claim. At some point after the claim was reopened, a dispute arose regarding whether Citizens owed yet additional sums under the policy. Manor House filed suit seeking payment of allegedly “undisputed amounts” and seeking to compel appraisal. The matter proceeded through appraisal, after which Citizens issued an additional net payment on the appraisal award. However, Manor House still proceeded to again file suit, claiming breach of contract and even fraud. The damages sought in the breach of contract claim included consequential damages, allegedly for lost rental income. The trial court agreed with Citizens that the fraud claim was barred by the independent tort doctrine and granted judgment on the pleadings as to that count. It also granted partial summary judgment for Citizens as to the lost rental income at issue in the breach of contract count, finding the policy covered property damage but not lost rent.

In the initial appeal, the Fifth District Court of Appeal affirmed the trial court’s ruling on the fraud claim, holding that claim was barred both because (1) it failed to plead a tort claim that was independent of the breach of contract claim, and (2) in substance it alleged a claim for bad faith and unfair claim handling, for which Citizens is immune as a governmental entity. However, the Fifth District reversed the partial summary judgment on the lost rent claim at issue in the breach of contract count, holding that the “consequential damages Manor House seeks are based squarely on breach of contract claims,” and did not implicate bad faith. See Manor House, LLC v. Citizens Property Insurance Corp., 277 So. 3d 658 (Fla. 5th DCA 2019), quashed by SC19-1394 (Fla. Jan. 21, 2021).

On review, the Florida Supreme Court honed in on the question of great public importance certified by the Fifth District on rehearing: “IN A FIRST-PARTY BREACH OF INSURANCE CONTRACT ACTION BROUGHT BY AN INSURED AGAINST ITS INSURER, NOT INVOLVING SUIT UNDER SECTION 624.155, FLORIDA STATUTES, DOES FLORIDA LAW ALLOW THE INSURED TO RECOVER EXTRA-CONTRACTUAL, CONSEQUENTIAL DAMAGES?” Citizens Property Insurance Corporation v. Manor House, LLC, SC19-1394, 2021 WL 208455 (Fla. Jan. 21, 2021).

In the Florida Supreme Court’s recent decision, it decisively answered, “No.”  In so holding, the supreme court concluded “extra-contractual, consequential damages are not available in a first-party breach of insurance contract action because the contractual amount due to the insured is the amount owed pursuant to the express terms and conditions of the policy. Extra-contractual damages are available in a separate bad faith action pursuant to section 624.155 but are not recoverable in this action against Citizens because Citizens is statutorily immune from first-party bad faith claims.” Id. The supreme court also emphasized that in a first-party insurance claim, the contractual amount owed is the amount due under the terms and conditions of the policy. Thus, a crucial fact was that the particular policy did not provide coverage for lost rental income. As a result, Manor House could not seek damages in a breach of contract action for “consequential damages” for lost rent, when the same simply was not covered under the policy. Any such consequential damages were thus, by definition, “extra-contractual” damages of the type that could only be sought in a well-pled, ripened bad faith claim brought pursuant to §624.155, Fla. Stat. But because Citizens is ordinarily immune from bad faith, Manor House’s claims simply failed as a matter of law under any view. Accordingly, the Florida Supreme Court quashed the Fifth District’s decision on the breach of contract count and remanded for proceedings consistent with its opinion. (The Fifth District’s ruling on the fraud count was not addressed by the supreme court and remains good law).

The Florida Supreme Court’s holding in Manor House vindicates and upholds an insurer’s right to enforce the terms and limits of the policy contract. This is immensely significant, especially in the current litigation age where the Plaintiffs’ Bar has increasingly trended toward attempting to inject “disguised” bad faith claims and claims for consequential, extra-contractual damages, into what should be straight-forward breach of contract claims. The supreme court’s decision in Manor House should go a long way to stopping such claims and tactics in their tracks. Thus, the holding should have a decidedly favorable impact on defending first-party claims of any type, whether they be claims for property damage, uninsured/underinsured motorist (UM) benefits, and even personal injury protection (PIP) claims.

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Congratulations to Jennifer L. Feld, of our Tampa office, for being featured in the KNOW Tampa. The KNOW features women who are leaders, creators, and entrepreneurs in their industries and in the community. We are so proud of Jennifer and her many accomplishments. There is no doubt we’ll see much more from her -- she is unstoppable! Congrats, Jen! Read here.






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Following the December 31, 2020 decision in Wilsonart, LLC v. Lopez and prospective change to the Florida Rules of Civil Procedure by Florida's Supreme Court, Florida became the 39th state to adopt the federal standard for summary judgment, colloquially known as the Celotex standard. The Florida Supreme Court amended Rule of Civil Procedure 1.510, adding the following language:

While the text of the summary judgment rule in both the Florida (Rule 1.510) and federal rules of procedure (Rule 56) is virtually identical, Florida courts have traditionally applied a more stringent standard to summary judgment. The crucial difference is how courts evaluate factual disputes: under Florida's jurisprudence, the existence of any factual dispute, no matter how trivial, is sufficient to defeat summary judgment; under the Celotex standard, the court instead focuses on whether a reasonable jury could return a verdict for the nonmoving party despite the factual dispute. In other words, a factual dispute under Celotex may not be fatal to a motion for summary judgment if the underlying fact in dispute would not change a jury's verdict.

In the Wilsonart decision, the Florida Supreme Court did not actually invalidate or re-interpret existing law; instead, it merely approved of adopting the Celotex standard. Therefore, practitioners should be prepared for “growing pains” among judges at the trial court level and in the district courts of appeal in navigating this new standard and making decisions accordingly in summary judgment proceedings, until a more concrete standard is created, applied, and trickles down through the Florida court system.

The amended Rule 1.510 takes effect on May 1, 2021, allowing practitioners and interested parties a chance to publicly comment on the proposed rule change. Because the new rule language as presently proposed is broad, the possibility exists the language will be refined to further clarify the precise standard for summary judgment. In the interim, Florida's summary judgment jurisprudence remains in effect.

In the short term, parties should focus in applicable cases on having previously-denied Motions for Summary Judgment reconsidered after May 1. However, the costs and benefits of doing so should be weighed on a case-by-case basis, keeping in mind the true magnitude of this decision is highly dependent on how Florida appellate courts apply Celotex. As a result, months or more may elapse before defense lawyers are able to fully evaluate how this new standard will affect case strategy moving forward.

Kubicki Draper’s Angela Flowers wrote an amicus brief in support of the adoption of Celotex on behalf of the Federation of Defense and Corporate Counsel. The attorneys at Kubicki Draper are prepared to discuss this noteworthy development and answer questions about how it may impact case handling and strategy after May 1, 2021.

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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 proud to announce Ken Oliver, of our Ft. Myers office, is the new President of the Southwest Florida Chapter of American Board of Trial Advocates (ABOTA)!
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We are pleased to announce, Shirlarian Williams, of our Ft. Myers office, has been named the President of Lee County Bar Association’s Young Lawyers Division. Congratulations, Shirlarian! We are very proud of your well-deserved appointment and know you will be a great leader!





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UPDATED INFORMATION FOR FLORIDA COURTS

STATE COURTS

08/12/2020 Amendment 6 to AOSC20-23 - Order on COVID emergency measures in the state courts
[https://www.floridasupremecourt.org/ezs3download/download/642474/7297339]

08/12/2020 Amendment 3 to AOSC20-32 COVID-19 health & safety procedures in the state courts
[https://www.floridasupremecourt.org/ezs3download/download/642473/7297334]

• Providing updated criteria for the transition to different phases
• Requiring a human resources policy at each court to address potential COVID-19 exposure of court employees and judges
• Updating health screening criteria for entry into a courthouse
• Providing updated guidance for courts in monitoring local conditions and public health data when expanding in-person proceedings
• Providing a methodology to determine deteriorating local health conditions that would require an amendment to a local operational plan or a return to an earlier phase

10/2/2020 Amendment 7 to AOSC20-23 - Order on COVID emergency measures in the state courts
[https://www.floridasupremecourt.org/content/download/672679/file/AOSC20-23-Amendment-7.pdf]

9/30/2020 Amendment 1 - AOSC20-12 - Order on monitoring and planning in response to COVID-19
[https://www.floridasupremecourt.org/content/download/672284/file/AOSC20-12-Amendment-1.pdf]

FLORIDA SUPREME COURT

https://www.floridasupremecourt.org/ezs3download/download/637809/7251452

Statewide grand jury proceedings shall remain suspended through July 26, 2020.

All other jury proceedings, including grand jury proceedings, jury selection proceedings, and criminal and civil jury trials, shall remain suspended until 30 days after the chief judge of a judicial circuit has determined that the circuit or a county within the circuit has transitioned to Phase 2 pursuant to Fla. Admin. Order No. AOSC20-32.

Essential and critical trial court proceedings should continue to be conducted remotely or, if necessary, in person.

In re: Remote Civil Jury Trial Pilot Program, Fla. Admin. Order No. AOSC20-31, judicial circuits selected to participate in the program may during and after COVID-19 conduct remote civil jury trials pursuant to the requirements established by the workgroup.

AOSC20-23 Updates new deadlines and address new Phase 3 guidelines -  https://www.floridasupremecourt.org/ezs3download/download/639134/7265622
                                                                                                                  

AOSC20-32  Establish a certification process for moving to Phase 3  - https://www.floridasupremecourt.org/ezs3download/download/639136/7265632

INTERMEDIATE APPELLATE COURTS

FIRST DISTRICT COURT OF APPEAL

• August and September Oral Arguments conducted on zoom video platform. The resulting video and audio will be available to the public on the court’s website at https://www.1dca.org/
• Following Florida Supreme Court directives.

Message to the Public (updated 8/03/2020)
[https://www.1dca.org/content/download/639002/7264019/A%20MESSAGE%20TO%20THE%20PUBLIC_updated%208-3-20.pdf]

SECOND DISTRICT COURT OF APPEAL

• The Second DCA will be conducting oral arguments remotely beginning in May.

THIRD DISTRICT COURT OF APPEAL

  

09/04/2020 Notice - THIRD DISTRICT COURT OF APPEAL BUILDING RE-OPENS TO THE PUBLIC

In view of the decline of the positivity rate for  COVID-19 cases, and the related decline in hospitalizations and emergency department visits in our district, the Third District Court of Appeal, has met the Florida State Courts guidelines to advance to the next phase of post-COVID-19 reopening.

As a result, the courthouse building is now open to the public.  The following safety requirements must be observed:
 

• Persons visiting the Clerk’s Office will be allowed entry after successful completion of a COVID-19 health screening and temperature check.
• While on the premises, all persons must wear a face covering and gloves.  If needed, mask and gloves will be provided at no charge, at the security checkpoint.
• Current CDC social distancing guidelines must be observed at all times.
• The courtroom remains closed as oral arguments continue to be conducted remotely.
• All other visitors must make an appointment with the Marshal at (305)229-3200 ext.0.
• Attorneys and pro se litigants should continue to file documents electronically, via the Florida E-Filing portal at www.myflcourtaccess.com.

FOURTH DISTRICT COURT OF APPEAL

• The Court’s in-person oral argument sessions scheduled through July 28th have been canceled.
• Oral arguments which will be conducted by audio or video conference will be streamed for the public on the Court’s website.
• The court may reschedule future oral arguments or conduct oral argument by remote means.
• No oral arguments will be held in the month of August.

FIFTH DISTRICT COURT OR APPEAL

https://www.circuit5.org/

• Essential Hearings and Approved Non-Essential hearings are being conducted via electronic means.
• Following the directive of Florida Supreme Court.

CIRCUIT AND COUNTY COURTS

FIRST JUDICIAL CIRCUIT

SECOND JUDICIAL CIRCUIT

• Supreme Court issued “Best Practices” guidelines on May 11, 2020, that were developed by a statewide COVID-19 Workgroup to help people navigate new remote procedures used by state courts in the coronavirus pandemic
• Court will reschedule proceedings or arrange for remote capabilities
• Mediation may be conducted by video conference or telephone when possible.
• Following Florida Supreme Court directives

THIRD JUDICIAL CIRCUIT

• Non-essential proceedings to be held remotely, if possible.
• Jury trials suspended.
• Zoom video tutorials  https://support.zoom.us/hc/en-us/articles/206618765-Zoom-Video-Tutorials

FOURTH JUDICIAL CIRCUIT

• AO 2020-18 Extension of Phase II Operational Plan for COVID-19 Emergency Through July 31, 2020
• All criminal and civil jury trials are suspended through July 31, 2020
• The Phase II Operational Plan is attached to this Order as Appendix A.
• Hearings shall be conducted either by telephonic means or video conference utilizing the Zoom Application or Skype.

FIFTH JUDICIAL CIRCUIT

• Non-essential hearings to be conducted electronically.
• Following Florida Supreme Court directives.

SIXTH JUDICIAL CIRCUIT

• Following Florida Supreme Court directives. https://www.floridasupremecourt.org/content/download/637271/7239420/AOSC20-23%20Amendment%203.pdf
• The Florida Supreme Court has extended the suspension of all criminal and civil jury trials from July 2 through July 17, 2020.
• All time periods involving the speedy trial procedure from July 6 through July 20 for all criminal and juvenile court proceedings.

NEW ORDERS SETTING HEALTH AND SAFETY MEASURES IN COURTS

AOSC20-23 Amendment 2 Comprehensive COVID-19 Emergency Measures

AOSC20-32 In re COVID-19 Public Health and Safety Precautions for Phase 2 expands the type of hearings that can be held face-to-face when the Circuit meets the criteria.

The Sixth Judicial Circuit Covid-19 Information and Updates http://www.jud6.org/Covid-19Information07062020.pdf. 

SEVENTH JUDICIAL CIRCUIT

07/02/2020 Re:  Phase 2 Transitions for Court Facilities

[http://www.circuit7.org/Communications/Phase_2.pdf]

EIGHTH JUDICIAL CIRCUIT

07/27/2020 AO 11.35
[https://circuit8.org/wp-content/uploads/11.35-Alachua-County-Transition-to-Phase-2.pdf]

• Alachua County transitioning to Phase 2 effective 07/28/2020

NINTH JUDICIAL CIRCUIT

• Jury trial to resume in October

Continued updates on the Tenth - Twentieth Judicial Circuit and Federal Courts here. 

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TENTH JUDICIAL CIRCUIT

(Hardee, Highlands, and Polk Counties)

http://www.jud10.flcourts.org/sites/default/files/adminOrders/AO_1-53.4.pdf

• Statewide grand jury proceedings are suspended through July 26, 2020; and other jury proceedings, jury selection proceedings, and criminal and civil jury trials are suspended through July 17, 2020.
• All non-essential and non-critical proceedings shall be conducted using remote technology.
• General Procedures (outlined in AOSC20-32)  are adopted to provide for the safety of those persons accessing the courthouses and court facilities.

ELEVENTH JUDICIAL CIRCUIT

(Miami-Dade County)

10/1/2020 County Civil Administrative Memo Re Jury Trial Procedures Phase 2
[https://www.jud11.flcourts.org/docs/County%20Civil%20Administrative%20Memo%20Re%20Jury%20Trial%20Procedures%20Phase%202%20[10-02-20].pdf]

COVID-19 Advisory #36: Miami-Dade Courts will Transition to Phase 2 COVID-19 Emergency Operations on Wed., Sept. 23rd

• VIRTUAL COURT
  • To the extent possible, all court proceedings will continue to take place in “Virtual Courtrooms,” where participants appear remotely via telephone or video technology.
  • Those with questions about how to access a future virtual court hearing should contact the office of the presiding judge. A judicial directory may be found here.
• TRIALS
  • In-person jury trials will resume following strict safety protocols established by the CDC and other health experts with whom the Miami-Dade Courts consult regularly.
  • Due to the space limitations of our courthouses and the social distancing and other safety protocols required during the COVID-19 pandemic, there will be fewer jury trials conducted than in the past. In order to ensure social distancing and keep the number of people inside our courthouses to a minimum, only the trial participants will be permitted to enter the courthouses

TWELFTH JUDICIAL CIRCUIT

(DeSoto, Manatee, and Sarasota Counties)
 

09/29/2020 Court Message

• Although Governor DeSantis has lifted the health precautions and restrictions imposed on businesses throughout Florida, the courts, as a separate but co-equal branch of government, follow the requirements put in place by the Florida Supreme Court and its chief justice, Charles Canady. Chief Justice Canady has issued several administrative orders outlining measures for Florida courts to follow, including a four-phase operating procedure. These phases are separate and distinct from the State of Florida phases issued by the governor.
• Since the early stages of the pandemic, the courts have continued to operate using remote technology in a continued effort to ensure that justice is not compromised. While some cases and court proceedings are more difficult to conduct than others, we are continuing to conduct court hearings and evidentiary trials by utilizing audio/video technology within our circuit.

• Currently, all three counties in the Twelfth Circuit have transitioned to Phase 2 operations in accordance with the administrative orders.
  • The four phases of the pandemic, as it relates to courthouse operations, are as follows:
  • Phase 1: In-person contact is inadvisable, court facilities are effectively closed to the public, and in-person proceedings are rare;
  • Phase 2: Limited in-person contact is authorized for certain purposes and/or require the use of protective measures;
  • Phase 3: In-person contact is more broadly authorized and protective measures are relaxed; and
  • Phase 4: COVID-19 no longer presents significant risk to public health and safety.

THIRTEENTH JUDICIAL CIRCUIT

(Hillsborough County)

08/31/2020 S-2020-044 -Continuity of Court Operations & Judicial Proceedings during COVID-19 Mitigation Efforts - Transitioning from Phase 1 to Phase 2

[https://www.fljud13.org/Portals/0/AO/DOCS/S-2020-044.pdf]

• Transitioning to Phase 2
• Criminal jury trials to begin October 19, 2020

FOURTEENTH JUDICIAL CIRCUIT

(Bay, Calhoun, Gulf, Holmes, Jackson, and Washington Counties)

09/07/2020 COVID-19 Ninth Amended Operational Plan For The Fourteenth Judicial Circuit Transitioning From Phase 1 To Phase 2
[https://www.jud14.flcourts.org/sites/default/files/media/doc/administrative_orders/2020-00-11A9.pdf]

• All counties to transition to Phase 2

FIFTEENTH JUDICIAL CIRCUIT

(Palm Beach County)


09/23/2020 AO 12.510 Mitigating Measures in Response to COVID-19
[https://www.15thcircuit.com/sites/default/files/administrative-orders/12.510.pdf]

SIXTEENTH JUDICIAL CIRCUIT

(Monroe County)

Eighth Amended Exhibit A to Emergency Directive 20-03 dated May 12, 2020:

[https://0201.nccdn.net/1_2/000/000/0e4/8c2/Emergency-Directive-20-03-8th-Amended-Exhibit-A.pdf]

• Non-residents can demonstrate that they have legitimate business in the Florida Keys portion of Monroe County now by providing documentation demonstrating Court business such as a hearing notice, deposition notice, subpoena, Florida Bar card or similar credential from another state.

https://0201.nccdn.net/1_2/000/000/08c/7bf/Administrative-Order-Supreme-Court-20-23.pdf

• All grand jury proceedings, jury selection proceedings, and criminal and civil jury trials were suspended beginning Monday March 16, 2020 and will remain suspended until May 29, 2020 or as further ordered by the Florida Supreme Court.
• Only mission critical matters to be heard.
• All other hearing postponed to be rescheduled by parties or Court.
• Where available, technological means of communication to be used.

SEVENTEENTH JUDICIAL CIRCUIT

(Broward County)

09/25/220 AO 2020-81-Temp – Continuity of Court Operations & Judicial Proceedings During COVID-19 – Transitioning From Phase 1 to Phase 2
[http://www.17th.flcourts.org/wp-content/uploads/2020/09/2020-81-Temp.pdf]

• Transitioning to Phase 2 effective 10/12/2020
• Civil jury selection and jury trials remain suspended until further order of the chief judge

09/25/2020 AO 2020-80-Temp – Health & Safety Requirements in Courthouse Facilities During COVID-19
[http://www.17th.flcourts.org/wp-content/uploads/2020/09/2020-80-Temp.pdf]

EIGHTEENTH JUDICIAL CIRCUIT

(Brevard and Seminole)

10/2/2020 Amended Phase 2 Operational Plan
[https://flcourts18.org/docs/Covid19/18th_Circuit_Amended_Phase_2_Operational_Plan.pdf]

NINETEENTH JUDICIAL CIRCUIT

(Indian River, Martin, Okeechobee, and St. Lucie)

• Jury trials to resume 10/5/2020

TWENTIETH JUDICIAL CIRCUIT

(Charlotte, Collier, Glades, Hendry, and Lee)

08/24/2020 Revisions to Twentieth Judicial Circuit Operations Plan and Resumption of Trials

[https://www.ca.cjis20.org/pdf/20thJudicialCircuitAlert_COVID-19_Advisory12.pdf]

• Resumption of criminal trials September 2020

FEDERAL COURTS

SUPREME COURT OF THE UNITED STATES

• The Court will hear oral arguments by telephone conference on October 5, 6, 7, 13, and 14

ELEVENTH CIRCUIT COURT OF APPEALS

08/14/2020 Eleventh Circuit General Order No. 46 - Requirements to Enter Court Facilities and Temporary Suspension of Paper Filing Requirements
[http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/GeneralOrder46r1.pdf]

SOUTHERN DISTRICT COURT OF FLORIDA

08/11/2020 Administrative Order 2020-53 Coronavirus Public Emergency - Sixth Order Concerning Jury Trials and Other Proceedings

[https://web.flsd.uscourts.gov/uploads/adminOrders/2020/2020-53.pdf]

• Jury trials continued to January 4, 2021

MIDDLE DISTRICT COURT OF FLORIDA

• The United States District Court for the Middle District of Florida issued general orders supporting videoconference and teleconference civil and criminal hearings.
• The public and the media can access court proceedings remotely during the national emergency.  https://www.flmd.uscourts.gov/sites/flmd/files/documents/flmd-public-notice-public-access-to-videoconference-and-teleconference-hearings.pdf
• The public intake areas in the Clerk's Offices in the Middle District of Florida are closed until further notice. Documents can be filed by CM/ECF or by dropping them off in the public drop boxes outside each Clerk’s Office.

NORTHERN DISTRICT COURT OF FLORIDA

7/13/2020 AO – IN RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID-19

[http://www.flnd.uscourts.gov/sites/default/files/general-ordes/20200713_AdminOrder_COVID19_PNClosure_Docketed.pdf]

• Effective immediately, the United States Courthouse and the Winston E. Arnow Federal Building, located in the Pensacola Division of the Court, must be temporarily closed to the public and will remain closed to the public until further notice.

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Hurricane Sally barreled through Florida on September 10, leaving large parts of the state damaged, flooded and without power. We hope everyone in Sally's path weathered the storm safely.

Now that the threat of the storm is behind us, we can focus on extending support to our family, friends and clients. Please know the KD family is here for you when you need us.  As you begin assessing the damages left behind by Sally, our attorneys and staff throughout the State of Florida are standing by to ease your work load where possible. We welcome the opportunity and look forward to being of service. Contact us at StormHelp@KubickiDraper.com for questions and/or claims handling assistance.



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Congratulations to Laurie Adams, of our West Palm Beach office, and Brad J. McCormick of our Miami office, for being recognized in the 2021 Best Lawyers “Litigation Issue” Business Edition!


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Did you know the Florida Supreme Court recently amended the Civil Cover Sheet (Form 1.997)?
 
This amendment requires a plaintiff now indicate the estimated amount of their claim when filing their action or proceeding, rounded to the nearest dollar with options being:
 
____     $8,000 or less
____     $8,001 - $30,000
____     $30,001- $50,000
____     $50,001- $75,000
____     $75,001 - $100,000
____     over $100,000.00
 
While the Florida Supreme Court provides that the basis for this amendment is for data collection and clerical processing purposes only, “clerical processing” seems vague and might be an avenue which the courts use to determine a case’s susceptibility for arbitration or placement on fast tracks for trial.
 
It might be anticipated that in all circuit court claims, the plaintiffs will likely choose to label their case with a value “over $100,000” notwithstanding the purpose of this rule.
 
We will keep an eye on this issue, but please contact us if you have any questions or would like to discuss further at info@kubickidraper.com.




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The legal and insurance industries are not immune to the effects of the rapidly spreading Covid-19 virus.

Coronavirus-related claims are already being made and undoubtedly, will lead to more litigation. Kubicki Draper has combined resources from every area of practice to help navigate the many legal challenges the virus has unleashed.

From business interruption, to construction, retail and hospitality claims, our Covid-19 Client Response Team is leading the charge and actively monitoring filings around the country to develop strategic resolution plans for the unique challenges the virus-related claims present. Our team can assist with:

• first and third party claims
• evaluating policies including
  • CGL
  • business interruption
  • event cancellation
  • ingress and egress
  • professional liability
  • supply chain
  • crisis management
  • marine and civil authority coverage
  • builder’s risk
• interpretation of policy language, including whether damage to property exists, the application of virus, pollution, pandemic and bacteria exclusions
• evaluating the impact of government closures and attempts by states to legislate coverage 

We are prepared to analyze your issues from every angle to ensure a comprehensive approach to this evolving area of the law.

For more information, please contact us: info@kubickidraper.com.
 

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Congratulations to the following KD attorneys for being recognized as 2021 "Best Lawyers in America," by the highly-respected "Best Lawyers" peer review guide.

Caryn L. Bellus, Angela Flowers and Betsy E. Gallagher - Appellate Practice
Brad McCormick - Personal Injury Litigation - Defendants and Commercial Litigation
Michael Carney – Litigation - Insurance
Jane Rankin - Real Estate Law
Laurie Adams - Personal Injury Litigation – Defendants

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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This article outlines the many issues and considerations that landlords and lenders will face in dealing with the effect of the COVID-19 Pandemic on their borrowers, tenants and properties.

Evictions & Foreclosures

There are currently no moratoria on commercial evictions in effect under either federal or Florida law.

The federal moratorium on residential mortgage foreclosures and evictions expired on Friday, July 24, 2020. The federal moratorium, while in existence, was limited in scope. It only applied to residences where the landlord is receiving a federal subsidy (such as Section 8 housing and VA programs), or properties that have a mortgage which was made, insured, guaranteed, purchased or securitized by any federal agency (HUD, VA, Department of Agriculture) or any of the various Government Sponsored Enterprises such as FNMA, FMAC, GNMA, etc.

The GOP proposed next round of coronavirus relief would extend the federal moratorium. Furthermore, various administration officials making the “Sunday Shows” rounds last week stated that the new relief bill would include extension of the federal moratorium. As we know, negotiations over the new relief bill broke down and President Trump issued four executive orders on various subjects, none of which reinstated the federal residential foreclosure and evictions moratorium. One of the executive orders directs various federal agencies to make funds available as temporary financial relief to renters and homeowners facing eviction or foreclosure caused by COVID-19. The order further directs the Department of Health and Human Services, and the Centers for Disease Control to consider whether measures to halt residential evictions for failure to pay rent are reasonably necessary to prevent the spread of the virus from one state to another. To say that there is a lack of clarity and guidance from the federal government on this issue would be a big understatement.

Meanwhile, the moratorium on residential evictions in Florida continues, “solely as it relates to non-payment of any rent by residential tenants due to the COVID-19 emergency.” Fla. Exec. Order No. 20-94 (Apr. 2, 2020). The moratorium has been extended various times, most recently on July 29, 2020 and is now in effect until September 1, 2020.

The latest Executive Order on this issue, Fla. Exec. Order No. 20-180 (Jul. 29, 2020), defines what “affected by the COVID-19 emergency” means. It is “loss of employment, diminished wages or business income, or other monetary loss realized during the Florida State of Emergency directly impacting the ability of a single family mortgagor or a residential tenant to make mortgage payments or rent payments.”

While there is no moratorium on commercial evictions, until June 30, 2020, Sheriffs in the entire state were not allowed to serve Writs of Possession pursuant to an Administrative Order of the Florida Supreme Court. However, on July 2, 2020, the Supreme Court ended this prohibition by administrative order. This leaves the issue to be controlled by the Governor’s Executive Order No. 20-94, as amended and extended. Certain circuits have supplemented the Supreme Court’s order with administrative orders of their own. For example, in the Fifth Judicial Circuit of Florida, the Chief Judge issued Administrative Order No. A-2020-15-D, which prohibits the Sheriffs from posting and executing Writs of Possession in evictions which come within the limited scope of the Governor’s Executive Order No. 20-94, as amended and extended.

Due to the constantly changing landscape, landlords should seek advice as to whether or not their properties are located in jurisdictions that permit some Writs of Possession to be issued and enforced.

Best course of action – Residential Tenancies

Due to the fact that landlords cannot obtain writs in those cases within the scope of the Governor’s Executive Orders, a landlord’s best, and perhaps only alternative, is to find creative solutions with their tenants. Since no one knows when and for how long the moratoria may be extended, innovative solutions for landlords and tenants are in order such as:

• Reduce rent or defer rent to be paid over time during the remaining term of the lease;
• Disburse any prepaid rents (for example, last month’s rent) and security deposits to satisfy the outstanding and future rents;
• If the property is financed, landlords should request a loan modification from the lender to defer principal payments for a specific period or increase the principal amortization term, both of which will result in a reduced monthly mortgage payment; or
• If the lease is guaranteed, landlords should demand rent payment from any additional obligors under the lease.

Best course of action – Commercial Tenancies

Although commercial landlords have the option of enforcing their leases due to the lack of moratoria, working things out with the tenants may still be the best alternative.

As with residential tenancies, offer the tenants abatement, forgiveness and reduction. Try to keep the tenant in the properties. Commercial landlords should take the following into account:

• Assuming that the landlord can obtain legal possession of the premises, will there be replacement tenants? This evaluation is fact driven and location specific, but the landlord should know the type of industries that would be most attracted to the property and how much they may be affected (both short and long term) by the COVID-19 Pandemic.
• Keep in mind the effect on other tenants of a rapidly emptying shopping center or office building. Obviously, the departure of anchor tenants has a huge impact on the culture of the property, its visual desirability and viable market rent. Moreover, the departure of non-anchor tenants may have a profound economic effect on other tenants due to customer and business type synergy as well as cross-marketing agreements.
• Landlords can administratively appeal their real estate tax assessment based on the actual reduction in the value of the real estate caused by reduced rents, increased vacancy rate, etc.
• Commercial leases are regularly provided to entities which have few assets other than the cash flow from the business operation. This makes the credit based portion of tenant approval highly important. Often the guarantees of the principals, affiliates or parent companies of the tenant are required to fill that gap. Demand for rent payment should be promptly made to each guarantor who may have motivation to pay to avoid eviction and suit for damages against the tenant and guarantors.
• A business interruption insurance claim may be made by the tenant to its insurer notwithstanding that most policies require physical damage to support the claim and may exclude viral outbreaks.
• The lease may contain “co-tenancy” provisions which permit a tenant to terminate its lease unilaterally if a certain percentage of the tenant spaces in a shopping center become vacant or if the anchor tenant closes its business.
• The lease may contain a provision permitting the tenant to “go dark” so long as the rent is paid when due. If this cost saving option is exercised by the tenant, the visual element of the premises’ viability will be impaired so landlords should consider concessions to keep the lights on at the premises.
• Most commercial leases contain a force majeure clause which should be carefully reviewed by counsel for application to COVID-19 related effects on landlord and tenant performance obligations. Be aware that most force majeure clauses do not excuse the tenant from their financial obligations of paying rent, maintaining insurance, etc. or permit either party to be excused from payment and performance based on economic conditions.

Commercial leases have unique lender issues which are triggered upon tenants failing to perform under their leases, closing business operation or vacating the property such as:

• If the landlord faces an upcoming mortgage loan maturity or other need to refinance, vacant units will reduce the appraised value of the property resulting in potential failure of the landlord’s real estate collateral to support the necessary loan amount.
• Commercial mortgages generally contain covenants which prohibit the landlord/borrower from materially modifying any lease without the written consent of the lender.
• Commercial loan agreements customarily contain a “debt service coverage ratio” covenant which requires the income generated from the property be greater (for example 1.2:1.0) than the debt service to the lender – with the effect that any abatement, deferral or reduction in rents can place the landlord/borrower in default under this covenant.

This check-list of actions to consider is not comprehensive. It is intensely fact driven by the type of property, target tenants, and, as is always the case in real estate: location, location, location.

We are available to discuss and assist you with these issues.




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Click image above or link below to view statement on diversity and inclusion from Kubicki Draper and members of the Florida Association of Managing Partners (FAMP).

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Congratulations to Charles Watkins, who is an Equity Partner in our Miami office and the firm's Chief Diversity Officer, for being recognized as The Top 100 in Florida by The National Black Lawyers. The National Black Lawyers Top 100 is an elite network of legal experts. The organization selects highly successful and influential lawyers with reputations for providing excellent legal representation in their respective practice areas. For more information, click here.




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As many of us have experienced, devastating storms can quickly make land fall leaving residents little time to prepare. With all signs pointing to a more active season than usual and Coronavirus still affecting the way we live, the key will be to prepare early. Below is a list of tips and links we hope you will find helpful in your planning and preparations.

• Build an emergency kit
• Know your zone so you know when to evacuate, if necessary
• Plan your evacuation route
• Take inventory of your personal property and review your insurance policies
• Take steps to protect your home and business
• Hurricane Safety Tips and Resources from the National Weather Service

If you are an insurance adjuster, remember to check your license transcript and ensure you have met all of your CE requirements, so your license is in good standing and is active. If you need credits, we have several webinars coming up. We are also happy to schedule a private complimentary webinar for you and your team. Please do not hesitate to contact us at info@kubickidraper.com.





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12/09/20
10:00 a.m. - 3:00 p.m.

Presenters: Anthony Atala, Jason Friedman, Jennifer Remy-Estorino, Ken Oliver, Steve Cozart

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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December 1, 2020
12:00 p.m. - 1:00 p.m.

Presenters: Lisandra Guerrero, Charles Kondla, Michael Balducci, and Harold Saul

This course explores the potential theories of liability that may be asserted against premises owners and operators in seeking to hold them responsible for the criminal acts of others, the methods used by claimants to prove inadequate security on the premises, and the defense strategies that should be employed to successfully defeat such claims.

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


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November 17, 2020
12:00 p.m. - 1:00 p.m.

Presenters: Donna Hunter, Charles Kondla, and Greg Prusak

This presentation will explore premises cases dealing primarily with slip and falls and falling objects. Learn about things to consider when adjusting such a claim from the status of a claimant at the time of the injury to the bones of transitory substance claims and dangerous conditions caused by falling objects. The presenters will share with real life examples of handling such claims.

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


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November 12, 2020
12:00 p.m. - 2:00 p.m.

Presenters: Charles Watkins, Jarred Dichek, and Virginia Austin (Florida Peninsula)

Upon completion of this course you will be able to: Recognize and identify more complex, nuanced issues related to property fraud, Develop best practices in the adjustment and investigation of potential fraudulent claims, Better understand how to use the investigative tools in the insurance policy, Recognize and prevent bad faith exposure in adjusting and investigating claims.

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


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November 12, 2020
10:00 a.m. - 11:00 a.m.

Presenters: Teresa Cummings and Paul Michael Gabe

This course will include an analysis in determining the strength of an IME Report and how and when the insurer should defend based on the IME report or opinion. Additionally, we will discuss the medical provider’s documentation and how that affects the strength of the IME report.

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

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November 10, 2020
10:00 a.m. - 12:00 p.m.

Presenters: Sam Itayim, Ava Mahmoudi, Nurelys Pereiro and Michael Walsh

Educate insurance professionals on alternative defenses that may arise in Florida PIP claims and suits.

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


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November 5, 2020
10:00 a.m. - 11:00 a.m.

Presenters: Jarred Dichek, Rebecca Kay, Justin Roberts and Natasha Vasquez

Learn what is covered and not covered under the Florida PIP Statute as well as the insurance policy itself. The course will go over various scenarios of which policy provides coverage for certain situations, and exclusions within the statute and policies.

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


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11/04/20
12:00 p.m. - 1:00 p.m.

Presenters: Michelle Krone and Eric Fluharty

The vast majority of construction litigation cases are resolved via mediation, arbitration, or a combination of the two. It is important for adjusters to understand the intricacies of the ADR process to be better prepared to be effective participants during, and before, ADR takes place. This course will review recent trends and provide practical tips for participating in ADR.

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



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November 3, 2020
2:00 p.m. - 3:00 p.m.

Presenters: Jarred Dichek, Diana Castiov Weller (Kennedys), Paul Juster (Assurant), Jennifer Newell (FedNat Insurance Company)

This presentation will begin with the basics of what social media is and how it can be used to assist in an investigation, including statistics on the importance of social media in business and every-day life.  We will introduce three actual case scenarios to the attendees and discuss what technology is available for use by SIU employees, adjusters and attorneys and how technology can help determine coverage relating to the claims discussed.  This course is helpful to SIU employees to broaden their investigative tools and abilities.  It is also helpful to the litigation adjusters as they will learn what evidence obtained pre-suit and through investigation is admissible at summary judgment and trial.  Finally, the course is helpful to attorneys via discussions of the admissibility of social media evidence and what steps may be taken to erase social media evidence once a claim is submitted.

(This is part of the 2020 CLM Focus: Cannabis, Environmental, Insurance Fraud, Property, Subrogation, Claims & Litigation Conference)

For more information, please visit CLM.



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November 3, 2020
2:00 p.m. - 3:00 p.m.

Presenters: Charles Watkins, Maria Elena Abate (Colodny Fass), Carl Nemeth (Tower Hill Insurance Group), Mariela Perez-Pennock (Assurant)

When it comes to Artificial Intelligence (AI) and claims handling, it is not a matter of “if”, but rather “when” – and the “when” is yesterday. Understanding and adapting to an AI model which can assist with fraud detection, via a fraud scoring model, can help adjusters and special investigative unit investigators readily detect fraud patterns or red flags from the time the claim is reported. This can lead to a decrease in  cycle time and early identification of issues, thereby assisting with a more focused, expeditious investigation, and a reduction in missed opportunities for SIU involvement.

This presentation will introduce the audience to the construct of Artificial Intelligence and its use in fraud detection, from Point of Sale (POS), to Underwriting and Claims. As with all new concepts and applications, there are legal and ethical issues which emerge and need to be addressed such as privacy rights and data collection.

The presentation will encourage discussion on the pros and cons of adapting AI in the insurance industry, including a dialogue on the effect IoT sensors may have on premiums, the impact of predictive modeling, machine learning, and fraud scoring on claims.

(This is part of the 2020 CLM Focus: Cannabis, Environmental, Insurance Fraud, Property, Subrogation, Claims & Litigation Conference)

For more information, please visit CLM.


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November 2, 2020
12:00 p.m. - 1:00 p.m.

Presenters: Francesca Ippolito-Craven, Lisandra Guerrero and Ken Oliver

This hour of continuing education will address how the unfortunate exploitation of humans impacts the hospitality, retail, housekeeping and agricultural industries from a legal perspective.  This course will focus upon recognizing, preventing and confronting human trafficking.  This course will also address the various causes of action that may be pursued in federal and state circuit courts by victims of human trafficking, as well as how to evaluate and defend against these claims.

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


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10/28/20
10:00 a.m. - 3:00 p.m.

Presenters: Charles Watkins, Anthony Atala, Barbara Fox, Greg Prusak and Ken Oliver

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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October 15, 2020
10:00 a.m. - 11:00 a.m.

Presenters: Michelle Davis and Leo Gomez Vargas

This course will go through an introduction to the statutory condition precedent relating to EUOs codified under §627.376(6(g) Fla. Stat., related contractual condition precedent and the practice of EUO.

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


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October 14, 2020
12:00 p.m. - 1:00 p.m.

Presenters: Francesca Ippolito-Craven, Sorraya Solages-Jones, Stephen Cozart, Rebecca Brock

Come travel down the spooky road of creepy crawlers and illegal activities that may sneak into your claims handling practice. We will discuss liability issues that hospitality, retail, and other businesses may encounter when there are Bugs, Drugs, and Thieves presenting issues on an insured’s premises. Participants will learn what duties are owed to guests and what may give rise to claims of negligence. They will learn about specific facts that may constitute foreseeable risks and what actions may be taken to keep record evidence that they have complied with their duties of care under Florida law based on previous cases.

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


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October 9, 2020
10:00 a.m. - 11:00 a.m.

Presenters: Colleen Kerins and Dina Piedra

Learn about Corporate Representative Depositions. We will walk you through deposition preparation step by step and teach what types of testimony is appropriate and what is not appropriate.

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


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October 6, 2020
10:00 a.m. - 11:00 a.m.

Presenters: Charles Watkins, Stefanie Capps, presenting with Tony Allogia (All Claims)

This course will review how to identify strategies for evaluating and defending inflated estimates, identifying strategies for investigating fraudulent conduct surrounding inflated estimates and identifying coverage defenses when suspected inflated estimates are potential red flags. (This course is part of FIFEC’s online series)

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



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October 5, 2020
10:00 a.m.- 11:00 a.m.

Presenters: Charles Watkins, Peter Baumberger, and Jason Friedman

This presentation will explore how to strategically maximize opportunities for early case resolution.  The presenters will share real life examples of tactics that can assist in resolving cases early, and also share some 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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September 30, 2020
2:00 p.m. – 3:00 p.m.

Presenters: Pete Baumberger, Kenneth Bunn (Builders Mutual Insurance Company), Matthew Inman (Allianz Resolution Management), and Jeffrey Keister (McAngus Goudelock & Courie, LLC)

Since the Great Recession new construction has been on the rise, and with it, there has been a significant uptick in construction accidents in many jurisdictions. This interactive session will address trends the panel has experienced in construction accident litigation along with some pitfalls and perils which exist in defending/prosecuting these cases. The discussion will cover the types of accidents that attorneys and claims professionals have been seeing; the theories and themes through which these claims are being prosecuted and defended; and how issues of indemnity and immunity can affect case strategy and resolution. Outside counsel and adjusters will discuss their experience in defending what appears to be increasing numbers of cases involving serious injuries from worker falls, building/bridge failures/collapses (including the notable FIU bridge collapse in Miami) and from overall defective construction/engineering work. The panel will discuss common tactics seen in discovery and how various themes are being utilized in these cases across the Southeast Region. (This course is part of CLM’s  Construction Conference)

For more information, please visit CLM.


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September 21, 2020
12:00 p.m. - 1:00 p.m.

Presenters: Peter Baumberger, Steve Rich, and Charlie Kondla

This course will review the various aspects of expert retention and why each step in the process can be critical, starting with selection of the expert. The presenters 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 session will culminate in a mock direct and cross examination of the expert.

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



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September 15, 2020 - Advanced PIP Litigation - Part 1
2:00 p.m. - 3:00 p.m.

Presenters: Bretton Albrecht, Jarred Dichek and Marsha Moses

This is Part I of a two-part webinar designed for those who already have basic knowledge of PIP claims. Part I, will address litigation strategies for initial pre-trial motions like motions to transfer venue and motions to dismiss. The session will also address proposals for settlement.


September 24, 2020 - Advanced PIP Litigation - Part 2
10:00 a.m. - 11:00 a.m.

Presenters: Michael Clarke, Allyson Jenks and Nahid Noori

This is Part II of a two-part webinar designed for those who already have basic knowledge of PIP claims. Part II, will address PIP litigation strategies for pretrial motions like motions for judgment on the pleadings and motions for summary judgment. The session will also address strategic use of motions for sanctions.

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


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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 THIS ISSUE:

• Spotlight on: David M. Drahos
• Parents of Kubicki Draper: Importance of Self-Care During Covid-19
• Covid-19 Claims Will Be Contagious: What’s to Come
• Litigating in Troubled Times: Technology Tips to Take a Top EUO
• Women in the Law
• The Impact of COVID-19 on Bad Faith Claims and Time Limit Demands
• New Additions
• Litigating in Troubled Times: The Virtual Shift of Our Industry
• The Prevalence of Opposition to Motions to Continue to Accommodate Parental Leave
• Recent Results: Appellate / Trials, Motions, Mediations
• Top Lawyers
• Presentations & Speaking Engagements
• News / Announcements

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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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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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Anthony Atala, of our Miami office, obtained a summary judgment for an insurance carrier in another “No Peril Created Opening” case. In this case, the carrier denied a late-reported Hurricane Irma claim for not having a covered peril based on the field adjuster’s inspection.  Plaintiff only utilized a public adjuster who opined that the roof had a covered peril due to the subject hurricane. At deposition, the public adjuster denied being an expert and that his estimate was incorrect. The judge did not consider Plaintiff’s affidavit on causation, determined that there was no evidence of a covered peril, granted summary judgment, and granted final judgment of costs. The carrier recovered over $2,000 in costs, which were paid by the insured.

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Anthony Atala, of our Miami office, obtained a dismissal in a first party property case. Plaintiff filed suit against its insurance carrier for a water loss. However, the unit was insured by the condo association and Plaintiff was an additional insured under the policy. At the hearing on the carrier’s motion to dismiss, the court ruled that Plaintiff must amend the complaint to include the condo association as an indispensable party within 14 days; otherwise, the matter would be dismissed without prejudice. Plaintiff failed to comply with the order, and the case was dismissed accordingly.

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Harold A. Saul and Kenneth “Jayme” Idle, of our Tampa and Orlando offices, respectively, successfully got their engineer client dropped in a large construction defect case. Before the engineer client was brought into the lawsuit, the case had been pending for nearly four years. The issue in this case was simple: the engineer never worked on the subject project. However, the homebuilder was adamant that the engineer was wrong and refused to drop the engineer from the case. Ultimately, Harold and Jayme were forced to serve a 21-day safe harbor letter on the homebuilder demanding it drop the claims against the engineer or face sanctions and further attached a motion for summary judgment and an affidavit from the engineer client’s president. The client was dropped from the lawsuit on the last day of the 21-day safe harbor period.

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Anthony Atala, of our Miami office, obtained a summary judgment for an insurance carrier in a “No Peril Created Opening” case where the insured reported the loss almost a year after Hurricane Irma. Anthony took the deposition of the insured who admitted that she had never been on the roof. He also took the deposition of the public adjuster who admitted to including things in the estimate that the house did not have, and he further admitted to his lack of knowledge on causation. Our client refused to hire an expert and submitted the field adjuster’s affidavit in support of the summary judgment. One week before the hearing, Plaintiff filed an affidavit of the same public adjuster with conclusions on damages, but never attributed the damages back to the Hurricane. 

Anthony moved to strike the affidavit just before the hearing arguing that it was notarized by the public adjuster’s wife who co-owns the business and has a financial interest in the company, and furthermore, the affidavit solely contained conclusory “expert” testimony without any causation opinions. The court agreed with Anthony and refused to consider the affidavit. The court further ruled that the case was over a year old, Plaintiff failed to present any evidence on causation, and granted our client’s motion for final summary. Anthony also filed a $500 proposal for settlement, which had since expired. 

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Jeremy A. Chevres, of our Miami office, and Florence R. Upton, of our Ft. Myers office, won a defense verdict in a case that has been pending for over five years and subject to appeals. The subject car accident involved a significant impact. Plaintiff’s ex-finance, a passenger in the subject vehicle, was left a paraplegic as a result of the accident. Plaintiff left her for a younger woman who he had three children with. Jeremy successfully precluded any mention of the woman’s paraplegic injuries while at trial since Plaintiff was trying to bootstrap his soft tissue claim with his ex-fiancé’s severe claim. The court also granted Jeremy’s summary judgment on Plaintiff’s claim for negligent infliction of emotional distress claim based on his ex-finance’s injuries. At trial, Jeremy masterfully cross-examined Plaintiff exposing all of his inconsistencies. Plaintiff asked the jury for $200,000 in past and future medical bills and $12 million in pain and suffering, and they returned a verdict of $25,000 in past medicals only.

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Stuart Poage, of our Tallahassee office, obtained summary judgment for an insurance carrier after two years of litigation. The case had been postured for summary judgment on a mold-testing issue since inception, but at the two preceding summary judgment hearings, Plaintiff’s counsel requested time for additional discovery, which was granted by the court. At the third hearing, Stuart won summary judgment after he convinced the judge that the policy did not cover the mold-testing company’s work because there was no indication of microbial growth before the testing was performed. A proposal for settlement was also served very early on.

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Donna Joy Hunter, of our Miami office, won a big summary judgment in a premises liability case. This case involved a slip and fall at the airport “on three puddles of thick green liquid.” Plaintiff claimed that she sustained extensive injuries as a result of the fall. She further testified that she was standing at a baggage area for 15 minutes, but never saw any cleaning people, and then turned around and fell in three puddles of unknown, green liquid. Donna was able to establish the client’s lack of constructive notice and summary judgment was granted in her client’s favor. Donna previously filed a proposal for settlement for $5,000 that was not accepted.

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Colleen A. Kerins, of our Ft. Myers office, obtained a complete defense verdict for an insurance carrier in arbitration. Colleen argued the assignment of benefits did not apply to the replacement of the screen-enclosure cage and garage door based on the language of the assignment of benefits. The estimate was for over $200,000. The arbitrator determined that the assignment of benefits was invalid.

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Michael S. Walsh, of our Ft. Lauderdale office, successfully convinced Judge Lee to deny Plaintiff’s motion for summary judgment based on CPT 97039. This case involved the following issue (for which there was no controlling precedent): whether CPT 97039 was reimbursable under the Medicare Part B fee schedule and whether the insurer was allowed to default to the workers’ compensation fee schedule pursuant to Florida Statute 627.736 (5)(a)1.f. Relying heavily on the Second DCA decision in Allstate v. Jorge Perez, Plaintiff argued that CPT 97039 was reimbursable under Medicare Part B and that the insurer was not allowed to pay at the workers compensation fee schedule. Michael argued that Plaintiff was not reading the statute as a whole and urged the Court to concentrate on the relevant wording of Florida Statute 627.736 (5)(a) 1.f. (2015), which states: “However, if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this sub-subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers' compensation, as determined under s. 440.13, Florida Statutes.” Michael argued that Plaintiff’s reliance on the Perez case was misplaced because that case involved the 2009 version of the pertinent statute. Michael successfully argued that the addition of the language in the 2015 statute stating “as provided in this sub-subparagraph” was limiting language, and that under the new statute, it was no longer enough for a Plaintiff to prove a code was payable under the general sphere of “Medicare Part B.” Michael argued that the legislature was now referring only to those parts of Medicare Part B referred to in the “sub-subparagraph.” The court agreed with Michael’s interpretation of the statutory change as well as his distinguishing of the Perez case, which relied on the old version of the statute. It is anticipated that many judges in Broward County and Miami-Dade County will follow this significant ruling.

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Sharon Degnan, of our Orlando office, won a motion to enforce settlement in a very bad car accident case that left three people killed, one severely injured, and our client in jail for DUI. The cases have been consolidated for discovery and likely for trial. One Plaintiff filed a proposal for settlement on behalf of the estate, which the carrier accepted.  Once accepted and payment was made, he took the position it was filed only for the personal representative individually and not for the other survivor or the estate. We moved to enforce the settlement, but the original judge denied it. Sharon appealed the ruling, but was unsuccessful. In the interim, another judge was assigned to the case and there was a rule change, so Sharon filed another motion to enforce settlement.  The new judge granted the motion to enforce settlement and followed Sharon’s arguments point by point refuting Plaintiff’s assertions.

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Steven Rich, of our Miami and Seattle offices, obtained rare wins on his Daubert motion and motion for summary judgment in a national toxic tort case involving alleged benzene exposure. Plaintiff (a former auto mechanic) claimed that his exposure to PB B’Laster (a bolt loosener) and other benzene-containing automotive products caused him to develop Acute Myelogenous Leukemia and to consequentially incur over $3 million in medical bills. The case, which turned on causation and damages, involved over 20 world-renowned medical experts in a multitude of fields. After two full days of hearings on the Daubert motion and motion for summary judgment, Judge Kelley struck Plaintiff’s industrial hygienist and granted summary judgment in favor of B’Laster essentially finding “Plaintiff can’t prove B’Laster did it so Plaintiff loses.”

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Steve Cozart, of our Pensacola office, secured an order dismissing, with prejudice, a claim against a workers compensation carrier alleging improper claims handling. The employer was initially sued by its employee in federal court for failing to pay hourly wages. The employer claimed that it had been forced to settle with the employee in that lawsuit because the workers compensation carrier set up medical appointments for the employee approximately 50 miles away from where the employee worked. The employer then sued the carrier in state court to recover the settlement amount paid as well as its attorney’s fees in defending the federal court action. Steve was able to convince the state court that the claims made by the employee were not covered under Part B of the workers compensation insurance policy and that there was no possibility that the employer could state a viable cause of action against the carrier. As such, the Court dismissed the Amended Complaint with prejudice and reserved jurisdiction to consider an award of attorney’s fees under a proposal for settlement that was served early in the litigation.

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Jonathan O. Aihie, of our Miami office, recently won summary judgment based on the policy’s anti-concurrent clause. Plaintiff sought compensation for mold testing in connection with an A/C leak at the insured’s property. Prior to Plaintiff’s mold inspection, the insured retained a water mitigation company that installed fans in the affected areas. The fans, however, caused the alleged mold to sporulate and spread throughout the insured’s property. Jonathan requested an engineer to re-inspect the property to confirm that the presence of the mold was exacerbated by the water mitigation company. Jonathan deposed Plaintiff’s corporate representative, who did not determine the cause of the loss.  At the summary judgment hearing, Jonathan successfully argued that the policy’s anti-concurrent clause applied because the insured contributed to the loss by installing the fans to sporulate the mold cells. Otherwise, the loss would have been covered.

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Lillian R. Sharpe and Michael Balducci, of our West Palm Beach office, won a summary judgment motion in a federal case involving a pretty savvy pro se plaintiff who claims to have been bitten by spiders at our client’s outdoor restaurant in Fort Pierce. Plaintiff had extensive injuries, but she did not report the bites at the restaurant as the swelling/infections reportedly started within the next day or two, and she delayed seeking treatment as she was on vacation. Lillian and Michael argued that Plaintiff could not prove negligence, let alone proximate cause, and the Court granted their motion for summary judgment. 

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Jennifer Levine Feld, of our Tampa office, obtained a voluntary dismissal with prejudice in a Category 3 Hurricane Irma AOB case in Brevard County, which was set for trial this fall.  While the Board of County Commissioners ultimately deemed the entire building condemned, unsafe, a public nuisance, and posed imminent danger to occupants, the dry-out company proceeded with its work.  Counsel quickly agreed to file a voluntary dismissal with prejudice of all claims, including fees, at the corporate representative’s deposition.

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Michael Balducci and Lillian R. Sharpe, of our West Palm Beach office, successfully got the court to dismiss two companion first-party property claims involving claimed water damage.  Plaintiff failed to attend scheduled EUO, which was (barely) requested within the 90 days following the notice of the claim, due to a suspected prior water loss, which the carrier wanted to investigate first.  Plaintiff argued the carrier needed to either pay or deny the claim within the 90 days of the claim per statute, but Michael persuaded the court that the carrier had good reason to request the EUO so they could not reasonably pay the claim within the 90-day period.  The Court agreed and dismissed both cases. Proposals for settlement were filed, and Plaintiffs are likely collectible. 

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