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

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

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

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

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

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



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


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Florida Governor Ron DeSantis recently signed into law House Bill 301, an omnibus insurance reform bill effective July 1, 2019. Among other things, House Bill 301 created Florida Statute Section 624.1055, which gives most liability insurers a statutory right of contribution for defense costs from other liability insurers who also have a duty to defend the insured. Expressly excluded from the provisions of the new statute are motor vehicle liability insurance policies and medical professional liability insurance policies. The statute applies to any claim, suit, or action initiated on or after January 1, 2020.

Section 624.1055 allows a liability insurer who owes a duty to defend an insured and    defends the insured a right of contribution for defense costs from any other liability insurer who also owes a duty to defend the insured in that same action. There is no entitlement to recovery of defense costs incurred prior to the other liability insurer’s receipt of notice of the claim. Defense costs are to be allocated by the court according to the terms of the applicable liability insurance policies. Section 624.1055 applies to liability insurance policies issued for delivery in Florida or under which an insurer has a duty to defend an insured against claims or actions asserted in Florida, including surplus lines insurance policies.
 
Prior to the recent enactment of Section 624.1055, a liability insurer’s right to contribution of defense costs was essentially prohibited pursuant to Florida case law. See Penn. Lumbermens Mut. Ins. Co. v. Ind. Lumbermens Mut. Ins. Co., 43 So. 3d 182, 186 (Fla. 4th DCA 2010) (“[T]here is no right of reimbursement to defense costs between primary insurers of a common insured.”); Cont’l Cas. Co. v. United Pac. Ins. Co., 637 So. 2d 270, 271 (Fla. 5th DCA 1994) (“[T]he duty of each insurer to defend its insured is personal and does not inure to the benefit of another insurer.”); Argonaut Ins. Co. v. Md. Cas. Co., 372 So. 2d 960, 963-64 (Fla. 3d DCA 1979) (same).

Now, through the enactment of Section 624.1055, Florida law regarding the right of contribution of liability insurers for defense costs is more akin to the law in most other states.

For more information, contact us at info@kubickidraper.com.

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

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

Registration and Florida CE/CLE information to follow.

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



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

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



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

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

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

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

The great program we have lined up is as follows:

Playing Roulette with Policy Conditions

Speakers: Valerie Dondero and William Sabinson

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

 

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

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

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

 

CRAPS - Civil Remedy Anatomy, Protocols, and Solutions

Speakers: Bretton Albrecht and Stefanie Capps

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

 

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

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

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

 

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

Speakers: Jonathan Aihie, Jessica Murray and Stephanie Seligman

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

 

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

Speakers: Anthony Atala, Sarah Goldberg and Katherine Moon

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

Space is limited, so register today!

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

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

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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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IN THIS ISSUE:

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

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IN THIS ISSUE: 

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

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IN THIS ISSUE:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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