We are pleased to announce Stuart Poage has become a Florida Supreme Court Certified Circuit Court Mediator. His mediation practice will focus on claims involving construction defects, work zone accidents, and personal injury matters across Florida. In addition to providing mediation services, Stuart is board certified in construction law by the Florida Bar and is an arbitrator on the American Arbitration Association’s construction law panel. For any questions, please contact Stuart at (850) 222-5188 or sp@kubickidraper.com.


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Our thoughts and prayers are with those affected by the devastation Hurricane Dorian caused in the Bahamas, as well as with those in Dorian’s path along the U.S. Atlantic Coast.

There are many outstanding relief efforts being organized, and charities are gearing up to send medical teams and relief supplies to the Bahamas. Unfortunately, emergency situations also often trigger many fraudulent charity solicitations. Below are links to lists Charity Watch and Charity Navigator have compiled of efficient and accountable charities involved in efforts to provide relief to Hurricane Dorian victims. We hope you will find it helpful in any plans being made to donate.

Charity Watch

Charity Navigator




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Michael Suarez is a Shareholder in Kubicki Draper’s Miami Office. He has spent his entire career as an attorney working at Kubicki Draper, starting in the West Palm Beach office before moving back to the Miami area.

Michael obtained his undergraduate degree in Psychology from Florida International University, with the hope of helping others as a counselor. While the work was fulfilling, Michael always believed his talents could be used in a better way, which led him to begin his legal career at St. Thomas University, College of Law. Michael’s background in Psychology has been instrumental in his role as a counselor at law, and he has found that this background, when combined with his passion for problem-solving, provides a uniquely effective approach to every legal representation, no matter the complexity.

Michael’s problem-solving skills help him defend cases in a wide variety of practice areas including class action defense, construction defect litigation, premises liability, and commercial litigation. He thrives on the new challenges and issues presented by every matter he handles while keeping focused on helping his clients navigate the often-stressful process of litigation. Michael has also been selected as one of the Florida Super Lawyers Rising Stars from 2014-2019.

When he is not handling matters in the courtroom, Michael enjoys following sports, history, and traveling with his wife—he has been fortunate enough to visit more than fifteen countries. For Michael, “life is not measured by the breaths we take, but by the moments that take your breath away.” He is motivated by the uncertainty of life and believes that you have to spend as much time as possible doing what you love with the people that you love. When asked what the best advice ever given to him was, he said “give it your best and everything will fall into place.” We couldn’t agree more.

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Hurricane Dorian has a good chance of strengthening and making landfall along Florida's Atlantic Coast in the next few days.

While there is still much uncertainty as to where Dorian will end up, if you are anywhere in its potential path, we trust you are taking every precaution to ensure you and your family's safety.

We have put together a list of helpful links below and hope you will find them useful. We have also activated our storm claims assistance help center, and we are available to address any storm-related claims issues or questions at: StormHelp@KubickiDraper.com.

All our best wishes to you and your family as preparations are made and we await more information about the impact Dorian will have on the Atlantic Coast.

 

Helpful Links and Phone Numbers

 

Ready
(Department of Homeland Security: actions to take under a hurricane watch/warning & what to do after the storm)

Florida Division of Emergency
(emergency information for Florida)

Federal Emergency Management Agency (FEMA)
(federal disaster response and recovery information & active advisories for Hurricane Dorian)

State of Florida Emergency Information (24-hour hotline): 1-800-342-3557

State Volunteer and Donations Hotline: 1-800-FL-HELP1 (1-800-354-3571)

American Red Cross: 1-800-HELP-NOW (1-800-435-7669)

Florida Power and Light: 1-800-4-OUTAGE (1-800-468-8243)

Florida Department of Elder Affairs: 1-800-96-ELDER (1-800-963-5337)

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We are pleased to announce the following KD attorneys were recognized as 2020 "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

Laurie Adams was also recognized as 2020 “Lawyer of the Year” in the Personal Injury Litigation – Defendants category for the West Palm Beach area. We are extremely proud of Laurie, as only one lawyer in each practice area and community is awarded this honor.

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.

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Kubicki Draper ranked number 3 in the National Law Journal’s 2019 Women in Law Scorecard! The Women in Law Scorecard ranks the largest law firms in the country by their representation of female attorneys. We are honored to have been recognized and look forward to continuing to foster an environment of equal opportunity for success. View here.



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Congratulations to Jennifer L. Feld, of our Tampa office, for being appointed as a Board Member of Tampa Jewish Family Services (TJFS). TJFS provides a community food bank, support services, financial assistance, educational assessments, senior care management, psychological and social wellness services to those in need. For more information, please visit: TJFS
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For the 16th year, Florida Legal Elite presents a prestigious roster of attorneys chosen for recognition by their peers. We are happy to announce several of our own were selected for inclusion in Florida Trend Magazine's 2019 “Florida Legal Elite” list.

Laurie Adams (West Palm Beach) – Civil Trial
Jennifer L. Feld (Tampa) – Insurance
Angela C. Flowers (Ocala) – Appellate Practice
Betsy Gallagher (Tampa) – Appellate Practice

These lawyers exemplify a standard of excellence in their profession and by so doing, have garnered the respect and esteem of their colleagues. Congratulations to our team members!

The entire Legal Elite report can be viewed at Florida Trend.


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Congratulations to Rebecca Brock, of our West Palm Beach office, for being elected to join the International Society of Barristers (ISOB) as a Fellow. New Fellows are elected by the Society's Board of Governors on nomination by an existing Fellow and after inquiry as to the nominee's skill as a trial lawyer and personal and professional integrity directed to other Barristers in the nominee's region and to judges before whom the nominee has tried cases. We are proud of Rebecca and her association with this outstanding group that seeks to preserve trial by jury, the adversary system, and independence of the judiciary. Learn more about ISOB.




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Our law clerk program is led by Jennifer Feld from the Tampa office, and Jennifer Remy-Estorino and Nicole Wulwick from the Miami office. Each year, our program leaders focus on recruiting a diverse, highly motivated group of law students with top academic credentials. This year's class is enrolled in top law schools throughout the State of Florida. Every participant will be paired with a mentor and given the opportunity to work alongside shareholders and associates to draft research assignments, contribute to trial preparation, observe depositions and attend mediations. The goal is to provide guidance and training that will help each student have a better understanding of the practice of law and the importance of providing clients excellent service. Successful summer clerks will be considered for associate positions upon graduation and bar admission.

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



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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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Alexandra Paez, Rebecca Brock, and Laurie Adams participated at the Palm Beach County Bar Association’s Bench Bar Conference on February 22nd.

Our team participated in two sessions at this year’s conference focusing on “Breaking Barriers and Sharing Solutions.”

Alexandra participated as a co-chair, and Rebecca as moderator, for a session on hot topics in personal injury. The esteemed panel for the session included Judge Rowe, Judge Nutt, Judge Keyser, Judge Gillen, Judge Gross, and Judge Artau. Together they covered everything from pre-trial and expert discovery to pre-trial disclosures, and voir dire.

Alexandra also co-chaired a panel Laurie was a part of along with Sean Dominick and Judge Sasser. They discussed bad faith and the recent Harvey v. GEICO opinion, as well as first-party property considerations, and ethical considerations, dilatory tactics, and compliance with local rules.

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Charles Watkins of our Miami office proudly awarded $10,900 in scholarship funds to worthy students during Pioneer Community Church’s annual celebration honoring graduates. As the Chair of the Kathleen B. Watkins Scholarship Fund, every year, Charles continues his mother’s legacy and awards qualified students funds to assist them in obtaining a college degree. Charles, who is also an Equity Partner and the Chief Diversity Officer of our firm, strongly believes in giving back to the communities in which we live and work, and this event is just one of the many ways in which he commits to do so.


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We are proud to have once again sponsored and participated in Florida Insurance Fraud Education Committee’s (FIFEC) Annual Conference in Orlando, Florida. Several of our attorneys presented alongside insurance industry professionals and law enforcement members in an effort to continue the ongoing fight against all forms of insurance fraud. Our team’s topics were as follows:


If you have any questions or would like more information about any of the topics, please contact one of our presenters above.

We look forward to participating in and hopefully seeing you at this great event next year!



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We are pleased to once again sponsor CLM’s Annual Conference. The conference is set for March 14-16, 2018 in Houston, TX and Charles Watkins and Caryn Bellus from our Miami office will be in attendance.

Charles is slated to present on March 15 with Jim Everett of Everett Cash Mutual Insurance Group and James Martin of Carfax. They will be discussing issues attendant to the overall management of auto total loss claims in catastrophic situations. Issues to be discussed include gaining knowledge of exposure pre-CAT, claim resolution options, referral flags for SIU, and the staging of SIU to handle them. The panel will also address legal issues including fair claim handling practices, Diminished Value on non total losses, fraud investigation assistance, and prosecution including fraud rings. Participants are encouraged to offer ideas, solutions, and examples of utilizing new technology and data to solve issues relative to these areas.

For more information, please visit: 2018 CLM Annual Conference.



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We proudly support and celebrate the success and contributions of women in the construction industry. Michelle Krone, of our Ft. Myers office, took part in celebrating Women in Construction (WIC) Week by presenting a session on behalf of the National Association of Women In Construction. She offered guests a legal perspective on issues related to the construction industry.



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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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IN THIS ISSUE: 

• KD in the Community
• Reservation for Exploitation: Confronting Human Trafficking in the Hospitality Industry
• A New Mother's Guide to Pumping During a Jury Trial
• Living Through the Storm
• Appellate Results
• Spotlight on: Valerie Dondero
• Trials, Motions, Mediations, Results
• 2019 KD Best Lawyers
• Presentations & Speaking Engagements
• News & Annoucements

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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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Earleen H. Cote and Jason R. Friedman, of the Ft. Lauderdale office, obtained a defense verdict in a car versus electric wheelchair accident. The Plaintiff was riding her electric wheelchair on the street when she was hit by the tortfeasor. The area where the accident occurred was under construction by our client in accordance with Broward County’s plans.

Although the road leading up to trial was difficult and contentious, Earleen and Jason seamlessly showed the jury that our client did not contribute to the Plaintiff’s accident. As Earleen so artfully explained in closing, playing a real life game of Frogger has its consequences. The jury found no liability for our client, but did find the driver to be 25% at fault. The jury found no permanent injury even though the Plaintiff suffered a fractured ankle because her attorney failed to provide expert testimony as to permanency.

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Ken M. Oliver, of the Ft. Myers office, obtained a defense verdict in Collier County where the client pled no contest to DUI, leaving the scene, and resisting arrest. As a result, punitive damages were sought. The first of many battles was to convince the Court to bifurcate the compensatory and punitive stages. Then, he fought and was successful in keeping out any reference to the bad acts of the client during every portion of the compensatory stage, including jury selection. Settlement efforts were in vein due to extreme costs incurred by Plaintiff’s counsel. Ken was able to show the jury the litigious nature of the Plaintiff, which included a Letter of Protection signed by Plaintiff counsel the day after the accident. There was also favorable surveillance that revealed Plaintiff’s ability to exercise after painting a very different picture for her treating doctors.

After four days of trial and a demand to the jury of over $700,000, they awarded only past medicals of $35,000, the amount suggested in closing. After set-offs and collateral sources, the next verdict was 25% less than the proposal for settlement filed, creating exposure to attorney’s fees and costs. The trial then turned to the punitive damages portion where our client, who had since completely turned her life around, was completely humiliated by the attacking of her past mistakes and personal medical history. As a result of all of the above, the parties agreed to settle the case for net, unpaid medicals of $23,000, walking away from all other claims and appeals.

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Michael S. Walsh, of the Ft. Lauderdale office, obtained a huge win for a PIP carrier at trial. The issue at hand involved a Plaintiff medical provider who has both a chiropractic license and a physician assistant license. According to the PIP statute, PA’s are paid at 85% of what a chiropractor gets paid for providing the same service. The Plaintiff alleged that he performed certain services as a PA and certain services as chiropractor, and that he should be reimbursed at the chiropractor rate (the higher rate) for those specific services even though the medical records and the bill only listed him as a PA. For the entirety of the trial Plaintiff’s counsel was literally trying to force a mistrial in hopes that dragging our client through the expense of another trial would get them to resolve it. Due to Mike’s timely objections on more than 3 occasions, Plaintiff’s counsel wasn’t even able to get out his full sentence when he tried to ask questions that were already ruled upon as being excluded.

The defense verdict had a large effect on a number of cases in Broward County that dealt with the same issue, and the carrier was thrilled with the result.

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Anthony G. Atala, of the Miami office, won a final summary judgment of first impression for a PIP carrier. In 2013, the carrier amended their policy including specific language that the insurer would limit reimbursement to the Schedule of Maximum Charges as defined by Florida Statute s. 627.736(5)(a)1. Plaintiff was taking the position that a particular modality, which was not included in the initial Medical Bill, was included and compensable, although the CPT code was not compensable by either the Medicare or Worker’s Compensation Fee Schedule. Ultimately, having no evidence to refute the carrier’s position, the Court granted Summary Final Judgment in favor of the insurer.
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Katherine S. Moon, of the Miami office, won a final summary judgment on a PIP claim where benefits were exhausted. The Plaintiff tried to allege that the benefits were not properly exhausted and that the carrier made voluntary payments when they paid the MRI provider at the limiting charge (which is a few dollars more) then the Medicare Fee Schedule charge.
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