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Motion for Summary Judgment on Worker's Compensation Immunity

November 30, 2018

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Motion for Fraud on the Court Granted

November 30, 2018

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Dismissal with Prejudice Granted

November 30, 2018

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Favorable Settlement in Anticipation of Motion for Summary Judgment

November 30, 2018

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locations

Miami

Miami Office

9100 South Dadeland Blvd., Suite 1800
Miami, FL 33156

T: 305.374.1212 F: 305.374.7846

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Miami-Dade
Key West

Key West Office

402 Applerouth Lane, Suite 2C
Key West, FL 33040

T: 305.509.7300 F: 305.374.7846

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Monroe
Ft. Lauderdale

Ft. Lauderdale Office

110 East Broward Blvd., Suite 1400
Fort Lauderdale, FL 33301

T: 954.768.0011 F: 954.768.0514

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Broward
West Palm Beach

West Palm Beach Office

1700 Palm Beach Lakes Blvd., Suite 800
West Palm Beach, FL 33401

T: 561.640.0303 F: 561.640.0524

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Indian River | Martin | Okeechobee | Palm Beach | Saint Lucie
Tampa

Tampa Office

400 North Ashley Drive, Suite 1200
Tampa, FL 33602

T: 813.204.9776 F: 813.204.9660

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Hernando | Hillsborough | Manatee | Pasco | Pinellas | Polk | Sarasota
Orlando

Orlando Office

201 South Orange Avenue, Suite 475
Orlando, FL 32801

T: 407.245.3630 F: 407.245.7685

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Brevard | Highlands | Orange | Osceola | Seminole
Ocala

Ocala Office

1396 NE 20th Avenue, #500
Ocala, FL 34470

T: 352.622.4222 F: 352.622.9122

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Alachua | Citrus | Dixie | Gilchrist | Lake | Levy | Marion | Putnam | Sumter | Volusia
Jacksonville

Jacksonville Office

1 Independent Drive, Suite 1601
Jacksonville, FL 32202

T: 904.396.0062 F: 904.396.0380

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Baker | Bradford | Clay | Columbia | Duval | Flagler | Hamilton | Nassau | Saint Johns | Union
Pensacola

Pensacola Office

125 West Romana Street, Suite 550
Pensacola, FL 32502

T: 850.434.0003 F: 850.434.0223

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Escambia | Holmes | Okaloosa | Santa Rosa | Walton
Tallahassee

Tallahassee Office

1705 Metropolitan Boulevard, Suite 202
Tallahassee, FL 32308

T: 850.222.5188 F: 850.222.5108

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Bay | Calhoun | Franklin | Gadsden | Gulf | Jackson | Jefferson | Leon | Liberty | Wakulla | Washington | Madison | Lafayette | Taylor 
Ft. Myers

Ft. Myers Office

13350 Metro Parkway, Suite 201
Fort Myers, FL 33966

T: 239.334.8403 F: 239.939.0700

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Charlotte | Collier | DeSoto | Glades | Hardee | Hendry | Lee
Mobile

Mobile Office

11 North Water Street, Suite 10290
Mobile, AL 36602

T: 251.308.3351 F: 251.287.1624

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Baldwin | Washington | Clarke | Escambia | Covington | Geneva | Houston | Henry |  Dale | Coffee | Barbour | Pike |Crenshaw | Butler  | Monroe | Clarke | Choctaw | Wilcox | Bullock | Russell

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Our Firm

our hi(story)

In 1963, Gene Kubicki founded the firm based on dedication to excellence. The same high standards have been maintained for over five decades -- years which have seen the firm’s ranks swell to over 200 attorneys.

ourattorneys

Our team knows return clients are the life blood of any law firm and this is why we ensure client satisfaction by an exacting attention to service and quality.  Client service coupled with a spectacular work ethic, makes our team hard to beat.

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ourDIVERSITY

Kubicki Draper is committed to fostering an environment of equal opportunity for success and believes diversity is not only a moral imperative, but is also sound business practice.

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ourPractices

In response to the growing needs of its clients, the firm began expanding in the early 1980's and today is a diverse full-service law firm providing trial, appellate, coverage, commercial and real estate transaction services.

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ourresults

Kubicki Draper enjoys a national reputation for expertise in the handling of complex, high stakes litigation matters, as well as, appellate, general commercial and real estate practice.

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ourreach

With a dozen offices throughout the State of Florida and other key points in the southern Alabama, our firm is familiar to every venue statewide and will never get home-teamed.

 find the location near you

Practices

Kubicki Draper provides service in the following areas:


For questions about our services and/or to assign a new matter, please contact Brad McCormick.

Marsha Moses is Appointed as Executive Director of the Tampa Bay Inns of Court

September 16, 2024

Congratulations to Marsha Moses of our Tampa office on her well-deserved appointment as Executive Director of the Tampa Bay Inns of Court! The Tampa Bay Inn of Court is committed to promoting professionalism, ethics, civility, and excellence within the legal community. Through its emphasis on example, education, and mentoring, the Inn works to advance the rule of law and elevate professional standards.
 
Marsha, who has been a member of the Tampa Bay Inn of Court for over a decade, is honored to take on this leadership role for the next two years.
 
To learn more about the American Inns of Court, please visit www.innsofcourt.org.

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KD Celebrates Hispanic Heritage Month

September 15, 2024

We are proud to celebrate Hispanic Heritage Month, each year from September 15 – October 15.

Some of our own team members are a testament to the rich Hispanic cultural tapestry. Their individual stories and experiences highlight for us how Hispanic traditions and culture continue to shape and enhance our daily lives and work environment, making our firm not only more diverse but also more connected to the communities we serve.

As we celebrate Hispanic Heritage, we are reminded of the strength and beauty found in diversity.






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Michelle Krone to Present at Virgil Hawkins Florida Chapter's First Quarterly Meeting & CLE

September 12, 2024

Michelle Krone from our Fort Myers office will be attending the First Quarterly Meeting & CLE event hosted by the Virgil Hawkins Florida Chapter of the National Bar Association, alongside her KD colleague Tracie Reese from our Tampa office.
 
Michelle will be presenting "Rainmaking Mastery: Leveraging Networking for Legal Success," focusing on the critical role of relationship building in the legal profession.

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Third DCA Clarifies Pre-Suit Notice Requirements for First-Party Property Insurance Claims

September 9, 2024

On September 4, 2024, the Third District Count of Appeal issued its opinion in Citizens Property Insurance Corporation v. Cheria Walden, which granted a writ of certiorari and quashed an order denying Citizens 's Motion to Dismiss the Complaint for failure to comply with pre-suit notice requirements under section 627.70152 of the Florida Statutes. The trial court denied the Motion to Dismiss on the basis that Florida Statute, Section 627.70152’s pre-suit notice requirements do not apply to a declaratory judgment action. The Third DCA determined that the trial court departed from the essential requirements of the law by denying the Motion to Dismiss, as the Complaint effectively alleged a breach of contract claim against Citizens, triggering the pre-suit notice requirements. This ruling means that property insurance carriers can seek dismissals if the pre-suit notice requirements of Florida Statute, Section 627.70152 are not met, even if a declaratory judgment action is pled that is a thinly veiled breach of contract claim. View the opinion here. 
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Mark Young Visits NASA

August 20, 2024  By:  Mark W. Young

The sky is the limit for Mark Young, of our West Palm Beach office, who received an invitation from the American Society of Civil Engineers to tour the National Aeronautics and Space Administration's (NASA) Kennedy Space Center in Florida. This exclusive tour offered Mark an insider’s view of critical aerospace infrastructure, including Launchpad 39B and the Vehicle Assembly Building.
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Back to School Drive 2024

August 19, 2024

Back to school ready! Our teams in Orlando, Fort Myers, Jacksonville, Fort Lauderdale, and West Palm Beach rallied together to collect essential supplies for local students. Together, we're helping to ensure a successful start to the school year.
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Best Lawyers in America 2025

August 15, 2024

We are proud to have several lawyers recognized in the 2025 editions of The Best Lawyers in America ® and the Best Lawyers: Ones to Watch™ in America.

For more information on the U.S. News - Best Lawyers® “Best Law Firms” rankings, please visit the “Best Law Firms” website here.

   





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Celebrating the Achievements of the Next Generation

August 13, 2024

We pride ourselves on supporting the growth and achievements of not only our team members but also, their families. We are thrilled to share the exciting accomplishments of Brooke Taylor, the daughter of one of our dedicated paralegals in Ft. Myers, Nigel Taylor.

Brooke is currently a standout student at UCF Rosen College of Hospitality Management, where she is majoring in entertainment management with a minor in digital media. Her hard work and passion have led her to an incredible opportunity as a social media coordinator intern for the 2024 Paris Olympics. Based at NBC Sports headquarters in Stamford, Connecticut, Brooke plays a crucial role in bringing the excitement of the Olympics to fans around the world.

In her role, Brooke is responsible for crafting engaging content that helps amplify the stories of athletes and celebrity hosts like Mike Tirico, Michael Phelps, Kelly Clarkson, and Snoop Dogg.

We are proud to see the next generation making waves in their respective fields, and Brooke’s success is a shining example of what can be achieved with determination and the right support system. Congratulations to Nigel and Brooke on her impressive accomplishments—we can’t wait to see what the future holds for her!

Read more about Brooke here. 
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Best Lawyers Celebrates Women in the Law

August 7, 2024

We are proud to announce that several of our women attorneys have been recognized in the 9th Annual Best Lawyers® Women in Law Business Edition. This prestigious publication honors the exceptional achievements of women in the legal field, including those recognized as "Ones to Watch."

Laurie Adams- Personal Injury Litigation
Caryn Bellus- Appellate Practice
Angela Flowers- Appellate Practice
Jane Rankin- Real Estate Law
Leeza Newman- Construction Law and Insurance Law

These women exemplify leadership and dedication, and their inclusion in this edition reflects their hard work and commitment to excellence. Congratulations to all!

Best Lawyers is the oldest and most respected peer-review organization in the legal profession. It compiles its rankings through extensive surveys, where tens of thousands of leading lawyers confidentially evaluate their peers in local markets and specialties.


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Mark Young is Florida Board Certified in Construction Law

August 2, 2024  By:  Mark W. Young

Congratulations to Mark Young, our newest Florida Bar Board Certified attorney in Construction Law! With a focus on complex construction law matters, Mark excels in representing a diverse clientele, from owners to contractors, in intricate disputes and high-stakes projects. His strategic counsel minimizes liability, making him an invaluable asset to clients.
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KD is #2 in Law 360's Annual Diversity Survey

July 31, 2024

We are beyond proud to have earned the #2 spot in Law 360’s Annual Diversity Survey among firms with 101-250 attorneys!

This is a testament to our commitment to creating a space where everyone can succeed, grounded in our belief that strength comes from diversity. We look forward to continuing our efforts and making our team even stronger.

View opportunities to join the KD Family here! https://www.kubickidraper.com/careers
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Insureds Not Entitled to Damages for Estimated Property Repair Costs if Repairs Are Not Made or Costs Incurred

July 29, 2024

In Univ. Prop. & Cas. Ins. Co. v. Qureshi, No. 4D2023-1338 (Fla. 4th DCA July 24, 2024), the Fourth District reversed a final judgment awarding damages based on an insurer’s failure to pay for water leak damage, holding that the insureds were erroneously permitted to present evidence of estimated repair costs when the repairs had not been made. The Court held that the plain language of the policy and section 627.7011(3)(a), Fla. Stat., requires payment for repairs “as work is performed and expenses are incurred.” The Court also declined to apply the doctrine of prevention of performance, which it described as “the circular argument that [an insurer’s] failure to tender payment for the estimated damages prevented the insureds from performing the repair work.” Instead, it certified conflict with the Third District’s decision in Citizens Prop. Ins. Co. v. Tio, 304 So. 3d 1278 (Fla. 3d DCA 2020), on which Judge Warner relied in a dissenting opinion. Thus, in the Fourth District, it appears that insureds cannot seek damages for estimated property repair costs unless the repairs were actually made or costs incurred. However, in the Third District, such damages may be available. We recommend objecting to an insured’s request for estimated repair costs damages in all districts when those damages have not been made or costs incurred. View the opinion here.


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Fourth District Requires Strict Compliance With Arbitration Statute, Receding From Precedent

July 24, 2024

Under section 44.103(5), Fla. Stat. (2021), “An arbitration decision shall be final if a request for trial de novo is not filed within” 20 days as required by Fla. R. Civ. P. 1.820(h). Since 2006, when the Fourth District decided Nicholson-Kenny Cap. Mgmt., Inc. v. Steinberg, 932 So. 2d 321 (Fla. 4th DCA 2006), it has not required a party to file a motion for trial de novo as long as there is “some notice” of their intent to reject an arbitration award and demand a trial. In Lawnwood Med. Ctr., Inc. v. Rouse, No. 4D2022-2637 (Fla. 4th DCA July 3, 2024), the Fourth District (en banc) receded from Nicholson-Kenny, finding that it conflicted with the plain language of section 44.103(5) and rule 1.820(h).  The Court also ruled that motions for trial de novo with mere scrivener’s errors should not be rejected and that relief from a missed deadline was still available under Fla. R. Civ. P. 1.540(b).  The Court certified conflict with two Second District decisions applying Nicholson-Kenny and noted that its decision was consistent with the First District’s approach. Thus, in the Fourth and First Districts, strict compliance with section 44.103(5) and rule 1.820(h) is required, but in the Second DCA it is not.  

Considerations in application to our client's review of similarly situated scenarios include:
  • If the client is requesting trial de novo, a motion for trial de novo must be filed within twenty days in the First and Fourth District's jurisdiction or it will not be granted.  
  • If the client misses the 20-day deadline, it may obtain relief by filing a motion for relief from judgment under rule 1.540(b). 
  • If the opposing party files an untimely motion for trial de novo, it should be opposed in all jurisdictions.  

View the opinion here. 


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KD Proudly Recognized in DBR's 100!

July 23, 2024

We are proud to be recognized by the Daily Business Review and earn a spot on their coveted DBR 100 Rankings list.

This honor reflects our commitment to diversity, as we are the only firm on the list led by a team composed of over 50% women.

This achievement marks our ongoing journey toward a more impactful tomorrow.


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ClaimsXchange Education on Location

July 22, 2024

Our Chief DEI Officer, Charles Watkins, presented, "Can We Prevent Human Bias From Becoming AI Bias?" as part of the ClaimsXchange Education On Location series. He presented with esteemed colleagues Maria Abate of Colodny Fass and Dwight Geddes of Metro Claims Management.

The series provides industry professionals the opportunity to network and share discussions regarding the industry's top themes.


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In Loving Memory of Michael Sundance Walsh -- Our Partner, Our Colleague, Our Friend

July 10, 2024

It is with profound sadness that we announce the passing of our partner, colleague, and dear friend, Michael Sundance Walsh, on July 1, 2024. Mike was not only a remarkable attorney whose contributions, dedication, and spirit helped shape our journey and success, he was a cherished friend who had a smile for absolutely everyone.
 
Mike was one of a kind, and for over 25 years at KD, where he started as an associate and ultimately became an equity partner, his commitment to excellence and unwavering advocacy for our clients earned him the respect and admiration of colleagues, judges, clients, and his very devoted team. But it was sense of humor, genuine kindness, and desire to befriend everyone, that set him apart. He was the life of the party, always ready with a joke, and had more friends than one could count.
 
Mike was born in Worcester, Massachusetts, graduated from the University of Massachusetts in Amherst, and earned his Juris Doctorate Degree from St. Thomas University. He was a faithful and vociferous Celtics and Patriots fan, always ready to prove their prowess to anyone at any time. He had a soft spot for animals, and was a steadfast supporter of local shelters and the Humane Society.
 
Mike enriched our lives in countless ways.  As we mourn this tremendous loss, we also celebrate Mike’s life and legacy. We invite clients, colleagues, and friends to join us in honoring Mike’s memory.
 
In these difficult times, our thoughts and prayers are with Mike's family. We extend our deepest condolences to them and ask that you keep them in your thoughts as well.
 
Calling hours for Mike were held on Saturday, July 13th from Noon until 3:00 p.m. at O’Connor Brothers Funeral Home, 592 Park Avenue. In lieu of flowers please make memorial contributions to the Worcester Animal Rescue League, 139 Holden Street, Worcester, MA 01606.
 

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Ananta Rampersad Appointed to the Florida Registered Paralegal Enrichment Committee

July 3, 2024  By:  Ananta A. Rampersad

We are pleased to announce Ananta Rampersad, of our West Palm Beach office, has been appointed to the Florida Registered Paralegal Enrichment Committee of the Florida Bar Association.

The committee is dedicated to enhancing the professional development and educational opportunities of Florida Registered Paralegals through various outreach programs and educational initiatives.

Ananta brings a wealth of experience to this role, having served as a Florida paralegal prior to pursuing her law degree at St. Thomas University. Her background uniquely positions her to contribute to the committee’s mission, and we look forward to her valuable insights and active involvement.

For more information about the paralegal committee, click here.
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Asian Pacfic American Bar Association: Siddh Guru Event

July 2, 2024  By:  Mark W. Young

Mark Young, from our West Palm Beach office, attended a Hindu Guru event presented by the Asian Pacific American Bar Association (APABA) and hosted by Holland & Knight.

Mark experienced a transformative presentation by Siddh Guru titled "Lessons on Peak Performance, Health, and Family." Siddh Guru enhanced his teachings with insights gained from his extensive travels to over 192 countries, all dedicated to the benefit of humanity.

Did you know?
Hinduism has 1.2 billion followers, making it the third largest religion in the world, following Christianity and Islam.

Thank you, Mark, for participating in this enlightening event and bringing back valuable insights for us to learn and grow from.
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Benjamin Bourdon is Appointed to Committee for Diversity & Inclusion

June 27, 2024  By:  Benjamin C. Bourdon

We are pleased to announce Benjamin Bourdon's appointment to the Diversity and Inclusion Committee of the Palm Beach County Bar Association.

The committee's mission is to advance diversity and inclusion in the local legal community through educational initiatives, community outreach, and social engagement, promoting an inclusive environment that respects people of varied backgrounds, religions, sexual orientations, and abilities. We look forward to Benjamin's impactful contributions in furthering these goals! 
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2024 Annual Florida Bar Convention

June 25, 2024

Tracie Reese, from our Tampa office, recently participated in a series of events at the Annual Florida Bar Convention.

On the first day, she attended the Blue and Gold E-Board Installation Gala, hosted by the Florida Association for Women Lawyers (FAWL). Tracie is set to serve as the 2024-2025 Journal Committee Chair.

On the second day, she was sworn in as Secretary of the Virgil Hawkins Florida Chapter of the National Bar Association.

Additionally, she participated in FAWL’s Executive Board Retreat and attended the Henry T. Latimer Awards Luncheon, formerly known as the Diversity Equity and Inclusion Committee Luncheon.

We are proud of Tracie's dedication to networking and professional growth, and we congratulate her on her achievements!
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SAVE THE DATE: KD's Construction Virtual Conference 2024

September 10, 2024

Save the date to join us for our all-day Virtual Construction Conference on Friday, November 8, 2024!
 
The complimentary event is designed to upskill claims professionals in their claims handling and management. Registration and CLE information coming soon!

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Join Us for Florida 4-Hour Law and Ethics Update Webinar in May

April 10, 2024

Florida 4-Hour Law and Ethics Update
 May 9, 2024 | 10:00 a.m. EST

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 4-Hour Law & Ethics (5-620) requirement? The complimentary webinar meets Florida Department of Insurance's 5-620 CE requirement and will cover:

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


This webinar is approved only for the 5-620 FL Adjuster All Lines License and/or the 2-20 FL General Lines License

For registration information, contact info@kubickidraper.com.


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Join us for KD's CE Complimentary Webinar in April

March 19, 2024

 
When Claims Are Moldy: Understanding, Assessing and Litigating Mold-related Issues in Property Claims
 
April 19, 2024 | 10:00 a.m. EST
 
In this dynamic session, claims professionals will learn the basics of mold in a property damage claim, including the types of mold, how it develops and how to effectively remove it. From the perspective of a seasoned engineer and mold assessor, guests will learn how the presence of mold can affect the evaluation of a water damage claim. Our legal team will share how to investigate mold claims in litigation.

Presented by: Jill Aberbach and Nicole Wulwick with special guest: Dana Race of Grindley Williams Engineering

For registration information, contact info@kubickidraper.com.

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Join Us For Our Upcoming Florida CE Webinar

February 14, 2024

Detecting Fraud: Unmasking Exaggerations in First Party Property Claims Estimates

March 15, 2024 | 12:00 p.m. EST
 
 
In this dynamic session, claims professionals will learn to identify inflated estimates from various sources, including insureds, public adjusters, and loss consultants. Uncover excessive items in estimates, explore case law related to fraud issues, and develop strategies for efficient claim resolution. Gain insights from real-world examples, and access valuable advice from a seasoned contractor.

For registration information, contact info@kubickidraper.com
 

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Join Us for KD's CE Complimentary Webinars in February

January 23, 2024

February 22, 2024 | 10:00 a.m.

Florida 4-Hour Law and Ethics Update 

Presenters: Michael Carney | Jason Friedman | Hillary Lovelady | Charles Watkins 

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 4-Hour Law & Ethics (5-620) requirement? The complimentary webinar meets Florida Department of Insurance's 5-620 CE requirement and will cover:
  • Regulatory Awareness
  • Insurance Law and Updates
  • Ethical Requirements
  • Industry Trends
  • Disciplinary Trends and Case Studies

This webinar is approved only for the 5-620 FL Adjuster All Lines License and/or the 2-20 FL General Lines License

 

February 27, 2024 | 12:00 - 1:00 p.m. 

Don't Delay, Appeal Today! Non-Final Orders Subject to Immediate Appeal Under Florida Rule of Appellate Procedure 9.130 

Presenters: Michael Clarke | Joye Walford

This class will provide claims professionals and attorneys with a substantive review of the designated non-final orders of Florida’s trial courts which are subject to immediate appeal under Florida Rule of Appellate Procedure 9.130. The course identifies issues and  provides critical information on the time frame to institute an appeal, jurisdiction, required findings and rulings within the order(s), and standards of appellate review that are applied by the appellate court. Finally, the course provides specific examples of Florida appellate opinions interpreting and applying Rule 9.130 to frequently occurring fact patterns in civil litigation.  

For registration information, email info@kubickidraper.com.


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Join Us for KD's CE Complementary Webinar in January

December 22, 2023

Human Nature - The Benefit of the Human Factors Expert

January 16, 2024 | 1:00 p.m. EST

In this presentation, our team will delve into the practical side of how human factors experts play a crucial role in addressing negligence claims. They’ll walk you through the decision-making process, help you understand when a human factors expert is beneficial, and explore how they navigate claims for the best results. The team will also touch on the current legal context and Daubert considerations. Join us for a great discussion about the world of human factors expertise!


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Join Us for KD's CE Complementary Webinar in December

November 13, 2023

Traumatic Brain Injury Litigation
December 5, 2023 | 12:00 pm EST

TBI claims have surged in recent years, with a mix of valid and questionable cases. This presentation will uncover the true nature of TBI injuries, offering insights into distinguishing genuine claims from dubious ones and providing strategies for their defense.

For registration information, contact us at info@kubickidraper.com. 
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KD's Virtual Construction Conference

October 4, 2023

KD Construction Conference | November 3, 2023

KD's Construction Practice Group is excited to invite you to a groundbreaking event that will revolutionize your approach to construction claims!

Whether you're a seasoned professional looking to refine your skills or someone new to the construction claims arena, our virtual construction conference promises to be a day filled with valuable insights and practical knowledge to boost your expertise in the field by reviewing the latest industry trends, innovations, and strategies.

Register today to secure your spot for one, some, or all of our upcoming construction presentations on November 3!

To register, email us at info@kubickidraper.com.


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Join Us for Florida 4-Hour Law and Ethics Update Webinar in November

October 4, 2023

Florida 4-Hour Law and Ethics Update

November 8, 2023 | 10:00 a.m. EST

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 4-Hour Law & Ethics (5-620) requirement? The complimentary webinar meets Florida Department of Insurance's 5-620 CE requirement and will cover:

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

This webinar is approved only for those who hold the 5-620 Adjuster All Lines License and/or the 2-20 General Lines License.

For registration information, email info@kubickidraper.com.


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Join us for KD's CE Complimentary Webinar in October

September 26, 2023

October 26, 2023 | 12:00 - 1:00 p.m. EST
OSHA: Investigation, Application and Detection of Fraud in First Party Property Estimates and Admissibility at Trial
 Presenters: Sarah Goldberg and Barbara Fox

This class will discuss common OSHA requirements, how they are included in first party property estimates and how to identify and handle fraud in estimates based on OSHA requirements.

All courses are complimentary for insurance professionals and are approved by the Florida Department of Financial Services for continuing education credit.

For registration information, email us at info@kubickidraper.com.
  


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2023 September Webinars

August 16, 2023

Opportunities for Florida CE credits continue online with the KD team!

These complimentary webinars are designed to provide claims professionals with valuable information that will assist them in their day to day claims handling and management. Join us! 

Presented By: KD's Construction Practice Group

Workers' Compensation Immunity Available Under Florida’s Worker Compensation Law in Florida’s Construction Industry

September 14, 2023
12:00 p.m. - 1:00 p.m. EST

Join us to discuss the various aspects and defenses provided by Florida Statute Section 440. This course will walk the audience through the statutory analysis and include a discussion of the ways to put the insured in the best position to not only help their case, but also support dispositive motions.


Defending Construction Cases and the Possibility of Early Resolution

September 25, 2023
12:00 p.m. - 1:00 p.m. EST

This presentation will explore how to strategically maximize opportunities for early case resolution in construction related cases and to effectively defend construction cases.

For registration infomation, email info@kubickidraper.com.
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Join us for our CE Webinar in July

June 27, 2023

Opportunities for Florida CE credits continue online with the KD team! 
 
This complimentary webinar is designed to provide claims professionals with valuable information that will assist them in their day to day claims handling and management. Join us! 

Florida 4-Hour Law and Ethics Update

July 25, 2023
10:00 a.m. - 2:00 p.m. EST 

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 4-Hour Law & Ethics (5-620) requirement? The complimentary webinar meets Florida Department of Insurance's 5-620 CE requirement and will cover:

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

This webinar is approved only for those who hold the 5-620 Adjuster All Lines License and/or the 2-20 General Lines License.

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

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Join us for our CE Webinar in June

June 5, 2023

Opportunities for Florida CE credits continue online with the KD team! 
 
This complimentary webinar is designed to provide claims professionals with valuable information that will assist them in their day to day claims handling and management. Join us! 

Auto Glass Practice Group Presents:
Seeing Through Fraud in Auto Glass Litigation

June 29, 2023
12:00 p.m. - 1:00 p.m. EST

Learn all about the basics of auto glass litigation, and how to avoid falling victim to the fraudulent tactics that are sometimes associated with these claims. Our team will help you learn how to implement tools to identify fraud and guide you on how to navigate the litigation process, posture cases to create binding law, and mitigate or avoid exposure to attorneys’ fees.

Presenters: Caryn Bellus, Jacqueline Bertelsen, Marsha Moses, and Anthony Atala

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

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KD Sponsors MDFAWL

May 22, 2023

KD is proud to sponsor and attend the Miami-Dade Florida Association for Women Lawyers (MDFAWL) 43rd Annual Installation & Awards Reception taking place on Thursday, June 8. 
 
MDFAWL is a voluntary bar association dedicated to promoting the advancement of women in the legal profession, and this event celebrates women in the field who have paved the way. To learn more about the organization and/or to attend, please visit: https://www.mdfawl.org/events-1/2023-mdfawl-installation-awards-reception.

 

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2023 June Webinars

May 5, 2023

Opportunities for Florida CE credits continue online with the KD team! 
 
These complimentary webinars are designed to provide claims professionals with valuable information that will assist them in their day to day claims handling and management. Join us! 

KD's Workers' Compensation Practice Group Presents:
Workers' Compensation: Daily Litigation Defense Strategies

June 15, 2023
12:00 p.m. - 1:00 p.m. EST

Join us to learn all about handling a workers' compensation claim from the reporting of the incident and initial investigation on through to the litigation process. The presentation will review updated case law and focus on litigation techniques and tips, including asserting defenses.

Florida 4-Hour Law and Ethics Update

June 21, 2023
10:00 a.m. - 2:00 p.m. EST 

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 4-Hour Law & Ethics (5-620) requirement? The complimentary webinar meets Florida Department of Insurance's 5-620 CE requirement and will cover:

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

This webinar is approved only for those who hold the 5-620 Adjuster All Lines License and/or the 2-20 General Lines License.

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

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KD to Present at FIFEC Conference 2023

April 14, 2023

We are honored to once again sponsor and participate in the 2023 Florida Institute Fraud Education Committee (FIFEC) Annual Conference. Join our team in Orlando, Florida from July 12-July 14 and attend the many CE topics we are slated to present. For more information and/or to register, visit: https://www.fifec.org/. 



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KD Quarterly- Fall 2023

October 24, 2023

IN THIS KDQ ISSUE:

  • News & Announcements
  • Legal Updates
  • KD in the Community
  • Spotlight: Meet Michael Suarez
  • Hispanic Heritage
  • First Party Conference Recap
  • First Party Conference Part II - Program Info
  • Construction Conference
  • Presentations & Speaking Engagements
  • Recent Results
  • In Loving Memory: Karleen Turchin
  • KD Team Updates
  • Contact Us



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KD Quarterly - Summer 2022 Edition

September 16, 2022

IN THIS KDQ ISSUE:
  • KD in the Community
  • What to Cover When Coverage Issues Arise: 5 Tips for Determining If You Need An EUO and, If So, What Questions to Ask
  • Spotlight on Jason Friedman
  • News / Annoucements
  • The Ins and Outs of Florida Deceptive & Unfair Trade Practices Act Claims: What They Are, What Considerations Are Needed, and How to Defend Them
  • Under Construction: A Quick How-To for Investigating & Analyzing Roadway Claims Occurring in or Near Construction Zones
  • Presentations & Speaking Engagements
  • Recent Results: Appellate
  • Recent Results: Trials & Motions
  • New Team Members
  • New Additions
  • Contact Info

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KD Quarterly - Spring 2022 Edition

June 1, 2022

IN THIS KDQ ISSUE:
  • KD in the Community
  • Recent Rule Change Allows for Immediate Appellate Review of Orders Permitting or Denying Punitive Damages
  • Insuring a Subcontractor? Four Factors to Consider in Evaluating a Tender Demand from a General Contractor
  • Spotlight on Laurie Adams
  • Presentations and Speaking Engagements
  • Appraisal: The Secret Weapon You May Want to Consider for Your Claim
  • On the Hook for a Prevailing Party's Attorney's Fees? Here's What to Know About Contingency Fee Multipliers
  • Recent Results: Appellate and Trials, Motions, Mediations
  • Charting the Right Course in Admiralty Jurisdiction: 5 Tips for Staying Afloat
  • New Team Members
  • News / Annoucements
  • Contact Info

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Appellate Court Reverses Where Summary Judgment Was Granted On Unpled Claim

July 24, 2024

In Florida Insurance Guarantee Association v. Feijoo, 49 Fla. L. Weekly D801 (Fla. 3d DCA 2024), Caryn Bellus and Barbara Fox obtained a reversal of a summary judgment. Plaintiff amended the complaint to name FIGA after Windhaven Insurance Company was declared insolvent. After FIGA tendered full payment, Plaintiff sought summary judgment under its declaratory judgment claim for improper policy cancellation, but asserted, outside the pleading, that it was entitled to a declaration regarding the policy’s validity and effectiveness on the date of loss. The appellate court found the two claims to be substantially different and held summary judgment was improperly entered on a claim that was never pled.


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Defense Verdict in Veterinary Case

June 26, 2024  By:  Michael J. Carney and Victoria S. Lopez

Michael Carney and Victoria Lopez of our Ft. Lauderdale office and Samuel Leah, of our Orlando office, secured a complete defense verdict after a week-long trial in Key West. The case involved multiple claims against a veterinary practice and its principals, including allegations of defamation, intentional infliction of emotional distress, malicious prosecution, fraud, and violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The KD team was brought in to handle the defense after the case was transferred from another firm when it became clear that a jury trial would be necessary.

Following the no-liability verdict and final judgment obtained on behalf of our clients, the plaintiff now faces potential exposure for attorneys' fees and costs due to an expired proposal for settlement.
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Arbitration Victory in Homeowners Insurance Dispute

June 24, 2024

Kameron Romaelle, of our Ft. Lauderdale office, secured a defense verdict in a non-binding arbitration, leading to a voluntary dismissal with prejudice in a homeowner insurance matter. Originally set for trial, the dispute involved a claim of over $40,000 for damages from an A/C leak. Despite initial denial due to seepage issues, Kameron effectively used engineer findings and the insured's testimony to refute the plaintiff's less compelling evidence, including their citation of our own engineer's study. The arbitrator awarded a defense verdict, prompting the plaintiff to request a walk away and a dismissal with prejudice was filed shortly after. 
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Successful Verdict in Duval County Auto Accident

May 29, 2024

Kendra Therrell and Stacie Morales, of our Jacksonville office, with assistance from some of their team members, achieved an excellent verdict in a Duval County case.
 
The case involved a disputed liability lane merge accident that resulted in $975.00 in property damage to the plaintiff's vehicle. The plaintiff was 17 years old at the time of the crash and 20 years old at the trial. The plaintiff's past medical expenses amounted to $285,488, including multiple cervical ablations performed by Dr. Sherban. Additionally, the plaintiff's life care plan projected for $2.2 million over a 57-year life expectancy.
 
Over five days, the jury heard testimony from plaintiff's treating doctors, radiologists, and life care planner. The defense presented testimony from their CME doctor and radiologist and played over an hour of surveillance footage showing the plaintiff engaged in activities such as pressure washing.
 
In closing arguments, the plaintiff requested over $13 million in damages. After five hours of deliberation, the jury found 45% liability on the defendant and 55% liability on the plaintiff, awarding the plaintiff the past medical expenses ($285,488) but no future medical expenses or pain and suffering.

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Second DCA Affirms Summary Judgment for Insurer Due to Noncompliant Assignment of Benefits

May 24, 2024

In Holding Insurance Companies Accountable, LLC, a/a/o Parnell Dickinson v. American Integrity Insurance Company of Florida, Caryn Bellus and Ben Carter obtained an affirmance of a summary judgment in a first-party property case brought by an assignee where the assignment did not comply with Section 627.7152. The assignee argued that the statute, which applies to assignments to or from a person “providing services to protect, repair, restore, or replace property, or to mitigate against further damage to property” did not apply to the subject assignment, because the assignee only sought to recover money on the insured’s claim, and did not provide any actual repair services. However, both the assignment and the assignee’s complaint provided for any money recovered to be paid in accordance with a separate direction to pay contract for a new roof. The trial court found this was enough to trigger the statute and entered summary judgment for the insurer.
 
On appeal, the assignee argued that the plain language of the statute showed it only applies to assignees who perform repairs, and the “service” of filing a lawsuit to collect benefits is beyond the statute’s reach. Relying on the time-tested rule of “if it looks like a duck, and quacks like a duck, then it is a duck,” Caryn and Ben argued that by seeking insurance benefits that would be used to repair the property, HICA was providing “services” as part of the insured’s effort to repair the property, and thus had to comply with the statute. Shortly after oral argument, the Second District Affirmed.

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MSJ Win Following a Successful Motion for Reconsideration in Sidewalk Trip and Fall Case

May 22, 2024

William Backer and Joye Walford received final summary judgment in a premises liability case involving a trip and fall on an uneven sidewalk in a residential subdivision. William and Joye argued that the minimal elevation difference (¼ to ½ inch) between sidewalk slabs was open and obvious, and not inherently dangerous as a matter of law. The Plaintiff claimed the sidewalk violated four codes, two of which were county ordinances, but did not produce the codes. The trial court initially granted summary judgment for the negligent failure to warn claim but denied it as to the count alleging negligent failure to reasonably maintenance the sidewalk, citing a possible Life Safety Code violation.

William and Joye filed for reconsideration, arguing the court considered evidence not in the record. The Plaintiff abandoned her reliance on the Life Safety Code and two other codes, introducing a new code and one not adopted by the ordinance, requesting judicial notice of these codes. The court granted reconsideration, refused to consider the new code, and held that judicial notice was improper for the non-adopted code. Without evidence of a code violation, the court granted full final summary judgment. 
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Eli Marger Successfully Defends Condo Water Leak Case

May 22, 2024

Eli Marger won summary judgment on claims brought by a condominium unit owner for negligence and res ipsa loquitur stemming from a sudden, high-volume water leak at the condominium building which had been vacant for two months due to a fire. Through discovery, Eli established his client – an upstairs unit owner – had no prior notice of a potential plumbing issue and that the precise cause of the failure was never determined. After two hearings on the motion for summary judgment, the judge granted the motion on Eli’s arguments for no duty and no applicability of res ipsa loquitur.
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Complete Defense Verdict in Hurricane Case

May 22, 2024

Sarah Goldberg and Charles Watkins, of our Miami office, obtained a complete defense verdict in a hotly contested Hurricane Irma full denial case.

The Plaintiff homeowner filed a lawsuit for breach of contract after her Hurricane Irma claim was denied in 2018. Plaintiff reported damage approximately 9 months after the storm, when a bedroom ceiling collapsed. Plaintiff hired a mitigation company three times between June 2018 and June 2020.

At trial, Plaintiff sought six figures for roof replacement and interior damage, while the mitigation company sought over $50,000 for its services. The lawsuit exposed the Defendant insurance carrier to potential fees in the hundreds of thousands, and likely a multiplier.

After a four-day trial, the jury ruled in favor of the insurance carrier finding that Plaintiff failed to prove Hurricane Irma caused the damage. Plaintiff unsuccessfully tried to exclude photos of a similar prior claim several times. Sarah’s skillful cross-examination revealed the prior claim damaged the same areas, and she demonstrated Plaintiff’s dishonesty about the prior loss. The coup de grâce came when Charles pounced on the overreach of Plaintiff's attorney and forced Plaintiff's expert to read into evidence his testimony that the repairs did not meet code – this, after hours of refusing to directly answer questions.

The insurance carrier’s expert showed the roof had no wind damage wind damage but rather repeated problems due to improper repair. Demonstratives illustrated and convinced the jury what real wind damages looked like with this type of roof.

With over five years of litigating numerous issues concerning expert testimony, dozens of Motions in Limine, prior claim photographs, the application, and burden shifting for trial, this trial win resulted in a huge cost savings for the carrier of multiple six figures.
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Defense Verdict in UIM Carrier Case

May 15, 2024

Alexandra Paez and Harold Saul, of the Tampa office, obtained a complete defense verdict for their client, the UIM carrier, after a 4 day jury trial in Hillsborough County. Prior to trial, the Plaintiff dropped his past and future medical expenses claims, due to the bills were significantly reduced due to Medicare payments, opting to solely pursue his pain and suffering claim. Crucially, Alexandra obtained a ruling from the Court confirming the admissibility of the Plaintiff’s pre-accident Social Security Disability application, on which the Plaintiff claimed somewhat similar injuries he was now claiming were caused or aggravated by the accident. Plaintiff called his treating pain management doctor, who treated him both before and after the accident and testified that the Plaintiff suffered a permanent aggravation of his pre-existing medical conditions.
 
Alexandra and Harold successfully argued the doctor lacked creditability since he has not reviewed any pre-accident MRI studies and was missing several significant prior medical records. Since the accident, the Plaintiff had 15 procedures, including epidural steroid injections, medial branch blocks, and a radiofrequency ablation.

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Defense Verdict: Church Premises Assault

January 31, 2024

Michael Carney and Victoria Lopez, of our Ft. Lauderdale office, secured a favorable defense verdict following a week-long trial in Osceola County, Florida. The case centered around a series of admitted sexual assaults involving a youth athletic coach and one of his players, with the assaults occurring on the premises of a church, the defendant in the case. There was no dispute about the happening of these assaults, the assailant is in prison and will be deported upon release.
 
The focal point of the legal dispute was the church's alleged failure to fulfill its obligation to provide security and background screening relative to the soccer program on its premises. Michael and Victoria asserted that the soccer coach was employed by a soccer program that would have its own responsibility to conduct background checks and provide security, not with standing the events occurred on the church’s property.
 
Although a sad case with a lot of emotion involved, the jury delivered a complete defense verdict, finding the church was not negligent and therefore not the cause of any losses or damages suffered by plaintiff.

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Defense Verdict in Jacksonville!

January 18, 2024

Brea Dearing and Kendra Therrell, from our Jacksonville office, successfully obtained a defense verdict in an Alachua County auto accident trial where liability was disputed. The plaintiff claimed her vehicle was totaled, alleging permanent neck and back injuries necessitating lifelong treatment. Defense countered by revealing the plaintiff's pre-existing chronic pain, previously denied, portraying her as an unreliable witness. Despite the plaintiff seeking over $2 million, the jury awarded only past medical expenses, determining no permanent injury. Post-trial motions led to a zeroed-out judgment via a stipulation triggered by the expired Proposal for Settlement.
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Mobile Technology Meets Vicarious Liability: Fourth District Court Holds Employer Not Liable for Employee's Hit-and-Run Accident While on Work Call

January 11, 2024  By:  Sharon C. Degnan

In McKee v. Crestline Hotels & Resorts, LLC, No. 4D2022-3428 (Fla. 4th DCA Jan. 10, 2024), Kubicki Draper’s own Sharon C. Degnan argued—and the Fourth District Court of Appeal held—that an employee was not engaged in the course and scope of employment when he struck two pedestrians while driving his personal vehicle home and, around that same time, used his personal cell phone to make what might have been a work-related phone call. In holding the driver’s employer was not vicariously liable for the employee’s conduct at the time of loss, the court applied the vicarious liability test outlined in Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74, 76 (Fla. 3d DCA 1990), concluding that the “act of using a personal cellular phone while driving home from work is not the kind of act [the employee] was hired to perform,” nor was driving or using a personal cell phone an integral part of the employee’s job. The court explained that “[t]he cost of negligence in such circumstances should be imposed on the owner or operator of the vehicle—not the employer.” See the full opinion here. 

For more information about this case and/or to discuss similar matters, do not hesitate to reach out to Sharon C. Degnan at (407) 419-3812 | scd@kubickidraper.com.
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Erin Johnston and Kendra Therrell Navigate a Contentious 5-Day UM Trial in Duval County

January 9, 2024

Kendra Therrell and Erin Johnston of our Jacksonville office tried an admitted liability contested damages 5-day UM trial in Duval County, a known volatile venue for insurance carriers. The at-fault driver was still a party to the case but was absent from the courtroom most of the week, leaving an empty chair. Numerous motions and objections were made before and during the trial to combat the Plaintiff’s improper arguments and comments, particularly regarding UM coverage and insurance. The trial lasted all five days. After 3 hours of deliberations, the jury returned a verdict for an amount within the UM policy limits, lower than our last offer, and a finding of no permanency.
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Defense Verdict in Homeowner Claim!

April 26, 2023  By:  Michael J. Carney and Kara K. Byrnes

Kara Cosse and Michael Carney proudly obtained a complete defense verdict for State Farm in Flagler County this week. Plaintiffs were claiming nearly $200K in tile roof and interior damage to their home after a three-day wind and rainstorm in mid-July 2021. Plaintiffs’ expert contractor testified extreme wind damage caused all the damage claimed to the plaintiffs’ residence, which included the lifting of tiles and interior ceiling damage. Through skillful cross-examination of the contractor, Mike and Kara were able to significantly impeach the expert with photographs contradicting his testimony and also attacked his methodology. Additionally, they were able to force the expert to admit he had never spoken with the plaintiffs to get any understanding of the claim, and he had an inaccurate timeline of events.
 
Kara and Mike called an expert engineer who testified the winds on the alleged dates of loss were minimal and opined it would take significant winds to lift the tiles and the damages claimed were due to wear and tear, maintenance and repairs performed by non-roofers.
 
As a result of the above, the jury clearly saw through the plaintiffs' evidence and claims and after a short deliberation, rendered the defense verdict.

 

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PIP Provider's Final Judgment Reversed with Insurer Granted Leave to Amend Answer on Remand

March 30, 2023  By:  Michael C. Clarke and Joye B. Walford

Michael Clarke, Jennifer Emerson, and Joye Walford of Kubicki Draper’s Tampa office, obtained the reversal of a Final Judgment in Progressive Select Insurance Company v. The Imaging Center of West Palm Beach aao Erica Prete, No. 4D21-3074 (4th DCA March 8, 2023). The Fourth District found that the trial court erred in denying the Insurer leave to amend its Answer and Affirmative Defenses. The Insurer sought to add new affirmative defenses including the invalidity of a pre-suit demand letter and the exhaustion of benefits.The amendments were essential as the Plaintiff had raised a new argument supporting its cause of action after a change in governing law in its favor. The Fourth District found that the trial court appeared to have denied the motion to amend on the basis that it was untimely but failed to consider that the Plaintiff had not been prejudiced by the proposed amendments and could prepare for the additional affirmative defenses. This was particularly true as the motion to amend had been filed before any summary judgment hearing or trial date had been set.  
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First District Court of Appeal Affirms Dismissal with Prejudice In a Workers' Compensation and Employers' Liability Coverage Case

November 28, 2022  By:  Caryn L. Bellus and Angela C. Flowers

Congratulations to Caryn Bellus and Angela Flowers for obtaining an affirmance of a motion to dismiss with prejudice in Bel-Mac Roofing, Inc. v. Bridgefield Employers Ins. Co. and Summit Consulting, LLC, 1D20-1502 (1st DCA Nov. 18, 2022). 
 
Caryn and Angela represented a workers’ compensation carrier and its administrator against claims for coverage, breach of contract, breach of fiduciary and implied duty, and indemnification brought by an insured employer who had been sued in federal court for violations of the Fair Labor Standards ACT (“FLSA”), Florida’s Deceptive and Unfair Trade Practices Act (“FDUPTA”), and other federal wage and labor laws. The First District agreed that the trial court properly dismissed a 10-count complaint with prejudice, where neither the workers’ compensation nor the employers’ liability coverage was triggered by the allegations in the federal complaint. The First District also agreed that the trial court properly dismissed the complaint for failure to state a cause of action because, as a matter of law, neither the workers’ compensation carrier nor the administrator owed the plaintiff employer extra-contractual duties.
 

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In a Win for Insurers, Appellate Courts Enforce Appraisal Provisions in Auto Glass Claims

November 15, 2022

In NCI LLC F/K/A Auto Glass Store LLC A/A/O Dora Noe v. Progressive, the Fifth upheld the trial court’s dismissal of a complaint without prejudice and enforced the plain language of the policy’s appraisal provision. 
 
In a consolidated appeal, Progressive American Insurance Company v. Hillsborough Insurance Recovery Center, LLC, et al., the Second reversed the trial court’s denial of Progressive’s motion to compel appraisal and reiterated its analysis from the Progressive v. Glassmetics decision, which broadly upheld appraisal under Florida law.
 

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11th Circuit Affirms Summary Judgment in Construction Defect Coverage Case

October 19, 2022  By:  Caryn L. Bellus and Benjamin B. Carter

Congratulations to Caryn Bellus and Ben Carter, of our Miami office, who prevailed in a federal court appeal arising out of the defective construction of a casino in Maryland.

Caryn and Ben represented Cincinnati Specialty Underwriters Insurance Company, which issued a CGL policy to window contractor KNS Group, LLC. The subcontractor who hired KNS, GM&P Consulting and Glazing Contractors, Inc., was eventually sued by the casino’s owner for faulty workmanship, and GM&P sought a defense and indemnity as an additional insured on KNS’s policy, which Cincinnati denied. In the subsequent coverage action, the district entered summary judgment for Cincinnati, finding that it had no duty to defend or indemnify GM&P because the policy’s additional insured coverage only extended to claims of vicarious liability for KNS’s negligence, which the underlying complaint did not allege.

On appeal, GM&P argued that the policy, which covered GM&P for property damage caused “in whole or in part” by KNS, included the casino owner’s claims because the underlying complaint alleged improper installation of the casino’s “glass façade,” which GM&P had subcontracted to KNS. In response, Cincinnati argued that the underlying complaint said nothing about KNS, and thus GM&P was being sued only for its own negligence, which the plain language of the policy did not cover. The Eleventh Circuit agreed, holding that the policy only covered GM&P for liability that “is caused by or occurs by reason of acts or omissions of the named insured.” Because there were no such allegations in the underlying complaint, the court affirmed summary judgment for Cincinnati.

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Battle of the Experts: Second DCA Affirms Defense Verdict & Exclusion of Plaintiff's Expert's Testimony

September 16, 2022  By:  Stefanie D. Capps and Sharon C. Degnan

Sharon C. Degnan, of our Orlando office, obtained an affirmance in Branch v. Rodrigues, 336 So. 3d 722 (Fla. 2d DCA 2022).  The case involved a relatively minor accident where the plaintiff, a garage door installer who frequently had to strain his arms and neck in his job, reported that he injured his arms and neck in the accident. Stefanie D. Capps, of our Ft. Myers office, tried the case originally, obtaining a total defense verdict and was also successful in securing orders to exclude the plaintiff’s biomechanical/accident reconstruction expert from testifying at trial and permitting the defendant’s biomechanical/accident reconstruction experts to testify. The plaintiff appealed, arguing that the trial court erred in striking his expert and in allowing ours to testify and further argued that our experts’ testimony improperly pyramided inferences.  Sharon highlighted the fact that the plaintiff’s biomechanical expert used an unreliable methodology and lacked familiarity with the simulation software discussed in his report.  She also laid out the incredibly detailed, step-by-step analysis used by the defense experts and explained that not only were they qualified to testify, their methodology was reliable and did not improperly stack inferences.  The Second District Court agreed. 
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Product Manufacturers, Distributors, & Retailers Everywhere Breathe Sigh of Relief: Products Liability Judgment Affirmed in Huffing Case

September 16, 2022  By:  Sharon C. Degnan

Sharon C. Degnan, of our Orlando office, prevailed on appeal in the products liability case of Grieco v. Daiho Sangyo, Inc., 2022 WL 2136932 (Fla. 4th DCA June 15, 2022), where the underlying plaintiff sustained injuries after he was struck by a vehicle driven by a young woman whom had been “huffing” computer duster spray, which she had just purchased at a nearby Wal-Mart. The plaintiff sued Wal-Mart along with the duster spray manufacturer and distributor under strict liability and negligence theories. The trial court below granted final summary judgment for Wal-Mart, the manufacturer, and the distributor, and the plaintiff appealed. Sharon argued as lead counsel on behalf of all three appellees.  In an 18-page opinion, the Fourth District Court of Appeal agreed with Sharon that, with respect to strict liability for the alleged design defect of the duster spray, the proper scope of inquiry is to consider the reasonable expectations of the consumer. In this case, the consumer was the tortfeasor, and no inference could be made that she had an ordinary expectation of the product performing safely because she had no intention of using it for its customary use. The court further re-affirmed the line of cases that holds that the manufacturer, distributor, and seller of a product cannot be held strictly liable when a third party’s injuries result from a consumer’s unintended and illegal use of a product. Regarding the plaintiff’s argument as to strict liability for the appellees’ alleged failure to warn due to a deficient warning label, the court rejected this, noting that the label stated that inhaling the product could be harmful or fatal, and explained that a bitterant was added to deter inhalation of the product. No additional warnings were needed with respect to the dangers of specifically driving while inhaling the product, as the plaintiff had argued. The last point the court addressed was the common law negligence count, which the lower court granted summary judgment on by finding that the intoxicated driver’s conduct was the sole superseding cause of the accident and injuries. The court wrote an in-depth analysis of foreseeability in the context of duty and proximate causation, and further reiterated that in some scenarios the question of proximate cause—normally one for the jury—can be a question to be resolved for the court, especially in the context of intervening negligence. The court also noted that the question of duty is not one to “the world at large” but arises out of the relationship between the specific parties, which is a more narrow inquiry, especially in cases involving the negligence of a third party.
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