In Certified Priority Restoration a/a/o James Krempler v. Citizens, No. 4D21-149 (June 30, 2021), the Fourth District Court of Appeal upheld summary judgment in favor of Citizens based on the Reasonable Emergency Measures language of its policy. 

Certified Priority Restoration (CPR) had executed an assignment of benefits with the insured, with a term of the assignment stating it was operating “as a direct request to (Citizens) for approval to exceed” the $3,000.00 policy limit for Reasonable Emergency Measures coverage. 

This document was transmitted to Citizens as part of 18 separate documents sent by CPR, with no specific attention drawn to the provision and no attempt to formally request to exceed the $3,000.00 cap as required by the policy. 

The appellate court found CPR’s “request” to be a “gotcha tactic” which is not permitted under Florida law.  Therefore, Citizens was under no duty to pay CPR above and beyond the policy cap for Reasonable Emergency Measures. Read case here.


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We are pleased to share that we recently held a boot camp for our talented associates which concluded with an outstanding mock trial.  The program directed by equity partner, Laurie Adams, of our West Palm Beach office, had over 70 participants. Our lawyers received support and training from experienced mentors to hone and perfect their craft!


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Senate Bill 54 which looked to do away with PIP and reform BI was presented (after passing the Senate and House) to Governor Desantis on June 28, 2021.

On June 29, 2021 the Governor withheld his approval and officially vetoed the bill.
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No news on the big PIP bill yet, but SB 420 passed!  Here’s what you should know.

The new law provides:

An insurer may exclude an individual for all claims and/or lawsuits arising out of operation of a motor vehicle for the following coverages:

• No-Fault
• Bodily injury
• Property damage
• Uninsured motorist
• Any other coverage which is not required by law to be purchased

In order to exclude a person:

• The named insured must identify the individual on the declaratory page and/or an endorsement (the named insured cannot be excluded)
• The named insured must consent in writing to exclude the person
• An excluded driver must establish, maintain, and show proof of financial ability to respond for damages arising out of the ownership, maintenance or use of the motor vehicle as required by Chapter 324, Fla. Stat., and maintain security as required by §627.733, Fla. Stat.

An insurer can not exclude coverage:

• For the named insured
• For an identified individual who is injured while not operating a motor vehicle
• For any person excluded solely because of race, color, religion, sex, national origin, age, or handicap
• If the exclusion is not consistent with the insurer’s underwriting filed pursuant to §627.0651(13)(a), Fla. Stat. 

Section 627.736, Fla. Stat., (the PIP statute) was amended to allow this exclusion in PIP policies.

Potential issues to consider before denying coverage for an excluded individual:

• Verify the excluded person is listed on the declaratory page or on an endorsement
• Verify there is written consent from the named insured for the exclusion. This is likely going to be similar to a UM coverage rejection/selection form
• Verify proof of financial ability to respond to damages for the excluded person were in fact established and maintained

The new law takes effect July 1, 2021.

For more information and/or questions, please contact us at info@kubickidraper.com.

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Heather Eres v. Progressive Am. Ins. Co., No. 20-11006, 8:17-cv-02354-TPB-SPF (11th Cir. 2021)

 

• Upon being notified of an accident where plaintiff was severely injured and her son was killed, the insurer immediately tendered its policy limits to plaintiff’s attorney, who was not ready “to receive the checks.” 
• The court found that the insurer remained diligent in following up regarding the tender.
• Plaintiff later communicated through new counsel a desire to accept settlement with certain conditions, including an affidavit from the tortfeasor and a release without indemnity or hold harmless language. 
• The insurer complied with all demands but while the release did not have indemnity language, it contained a waiver of subrogation which plaintiff found to be overbroad and not to comply with her demand to settle.
• The settlement was never effectuated, and plaintiff recovered $10 million following a jury trial -- then filed a bad faith suit.
• The Eleventh Circuit, affirming the Middle District of Florida, found the insurer did not act in bad faith. 
  • With regard to the release, the Court held the totality of the circumstances, including the fact that the insurer told plaintiff’s counsel in writing that the disputed language could be stricken from the release, relieved the insurer of any bad faith liability.

   

View full opinion here.


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Led by Jennifer Remy-Estorino and Nicole Wulwick of our Miami office, and Jennifer L. Feld of our Tampa office, the team focuses their efforts on recruiting a diverse, highly-motivated group of law students with top academic credentials. Each law student is be paired with a mentor and given the opportunity to work alongside shareholders and associates to draft research assignments, contribute to trial preparation, observe depositions and attend mediations. The goal is to provide guidance and training that will help each student have a better understanding of the practice of law and the importance of providing clients excellent service.

Successful summer clerks will be considered for associate positions upon graduation and bar admission. This summer we welcome: Alec Ede, Tatiana Hernandez, Victoria Scotti, Keani Knight-Walker, James Cox, Wallace Stage, Erika Funderburk, Marissa Zink, Fabiola Meo, and Jordan Weinberg!

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



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We are pleased to announce Teresa Cummings has become a Florida Supreme Court Certified Circuit Court Mediator. Her mediation practice will focus on claims involving automotive liability, personal injury, wrongful death, construction, and contract disputes.

In addition to providing mediation services, Teresa successfully represents insurers and their policyholders in a variety of matters including: Personal Injury Protection (PIP), first party property, fraud/SIU and automobile liability. For any questions, please contact Teresa at 850.436.7313 or tfc@kubickidraper.com.



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June is LGBTQ+ Pride Month, an annual global celebration to commemorate the 1969 Stonewall uprising that helped launch a movement to outlaw discriminatory laws and practices against LGBTQ+ Americans. KD stands with the LGBTQ+ community and supports and celebrates the milestones that have been reached so far and those yet to come.

In the spirit of Pride, we invite you to join us in exploring more about the celebration and its origin and in learning about organizations working to eliminate discrimination, advocate for equality and provide access to health care and social support. https://www.loc.gov/lgbt-pride-month/about/



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We are so proud to share we have earned a top tier ranking on The American Lawyer’s Diversity Scorecard for 2021!

As a newcomer to the list, we are honored to have stepped in at #5 out of 200 firms surveyed nationwide. This recognition is an attestation to our commitment and belief that a diverse team is a stronger, more vibrant one. And, that we strive to foster a workplace that is dedicated to recruiting, developing and retaining diverse talent.

We look forward to continue encouraging excellence by maintaining an environment where all our employees feel empowered to do their best.

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Kubicki Draper is proud to be RING Certified! Recognizing Inclusion for the Next Generation (RING) offers a new gold standard to identify, promote, and celebrate qualifying organizations. The organization supports diversity, equity, and inclusion by introducing a unique certification program for companies who share their commitment. To learn more about RING, click here.



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Fourth District Rejects Efforts to Introduce a Plaintiff’s Total Billed Medical Expenses When Medicare Paid a Reduced Amount

In Gulfstream Park Racing Ass’n, Inc. d/b/a Gulfstream Park Racing & Casino v. Volin, 4D19-3471, Fla. 4th DCA, May 19, 2021, the Fourth District reaffirmed its holding in Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 551 (Fla. 4th DCA 2003), and ordered a new trial on damages when a trial court allowed a Plaintiff to introduce the full amount billed by her medical providers instead of limiting the evidence of past medical expenses to the amounts actually paid by Medicare.

• The opinion notes the general confusion courts have when applying Florida’s collateral source rule and offers a concise explanation of Florida’s law on the subject; that this confusion is likely the result of aggressive advocacy by plaintiffs’ attorneys to chip away at Florida’s long-established principal that “the measure of compensatory damages in a tort case is limited to the actual damages sustained by the aggrieved party.” Id. at *2-3.
• Plaintiff argued that Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247 (Fla. 2015), implicitly overruled a long line of case law, including Thyssenkrupp Elevator Corp., when it held that it was proper to exclude evidence of a plaintiff’s eligibility for future benefits from sources like Medicare and Medicaid.
• The Fourth District disagreed and noted that Joerg only applied to future medical expenses and did not address past medical expenses.
• The Fourth District is not the first court to reject the argument Joerg extends to evidence of past medical benefits. The Second District came to the same conclusion in Dial v. Calusa Palms Master Ass’n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020). The Fourth District agreed with the Dial decision and joined the Second District in certifying the following question of great public importance to the Florida Supreme Court:
   

DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 2015), PROHIBITING THE INTRODUCTION OF EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL INJURY CASE FOR PURPOSES OF A JURY’S CONSIDERATION OF FUTURE MEDICAL EXPENSES ALSO APPLY TO PAST MEDICAL EXPENSES?

• Clarification from the Florida Supreme Court regarding the application of Florida’s collateral source rule would be a helpful tool to withstand the rigorous opposition defendants face from plaintiffs regarding evidence of past medical expenses in the lead-up to trial. In the meantime, the Fourth District’s decision offers a clear rejection of the argument that Joerg overrules the long-standing prohibition against admitting the full amount billed by medical providers when providers accepted a reduced payment from Medicare or Medicaid.

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Charles Watkins, our Chief Diversity Officer and one of our equity partners, has recently joined RING’s Advisory Board (Recognizing Inclusion for the Next Generation). RING offers a new gold standard to identify, promote, and celebrate qualifying organizations. The organization is proud to demonstrate its support of diversity, equity, and inclusion by introducing a unique certification program for companies who share its commitment. For more information, please contact Charles Watkins at cw@kubickidraper.com.



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May 9-15th is National Hurricane Preparedness Week, and as many of us have experienced, storms can approach fairly quickly leaving little to no time to adequately prepare. Experts indicate the 2021 season is expected to be an above normal season for tropical activity, so we have included some tips and helpful links to help you prepare this year.

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

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


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This month we pause to recognize and celebrate the contributions people of Asian and Pacific Islander descent have made in the U.S.

In consideration of the rise in hate crimes against Asian Americans, it is even more important to us to stand firmly in support of our diverse Asian, Asian American and Pacific Islander communities.

Join us in celebrating Asian American and Pacific Islander Month by exploring AAPI history, culture and accomplishments.



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May is designated as Mental Health Awareness Month, an important reminder to recognize that mental health and prevention services are a critical part of overall wellness.

With the lingering effects of the pandemic and a shift in "returning to normal," we set out to provide our team resources for supporting mental health and well-being at work. Self-care has a great effect on our mental health, so we’ve arranged meditation services, breathing exercises and other outreach activities for our team to help improve mental, physical and spiritual well-being.

We invite you to pause and take time for yourself daily as it has been proven to reduce stress and anxiety levels while increasing self-compassion.

For helpful resources, visit: https://www.mhanational.org/ and https://www.nami.org/Get-Involved/Awareness-Events/Mental-Health-Awareness-Month




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Congratulations to Rebecca Leigh Brock, of our West Palm Beach office, on being inducted as a Fellow of the International Society of Barristers. The organization was formed to recognize each era's best advocates and to have them join to support the retention of trial by jury, professionalism, and ethics. Membership is by invitation only which is proceeded by a rigorous screening process that considers the lawyer’s ability, experience, accomplishments and ethical standards as assessed by trial lawyers and judges. For more information, please visit: https://www.isob.com/



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What you need to know about Florida’s adoption of the federal summary judgment standard when it goes into effect on May 1.

The Florida Supreme Court’s decision to adopt the federal summary judgment standard in WilsonArt v. Lopez case is now underscored by the court’s near-verbatim adoption of federal rule 56. In what appears to be an effort to expedite the federal standard’s integration into Florida practice, the court added the following language to Rule 1.510(a): “The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.” In re Amends to Fla. Rule of Civ. Pro. 1.510, No. SC20-1490 (Fla. Apr. 29, 2021). While it remains to be seen how Florida’s trial courts interpret the new standard, the Florida Supreme Court explained that its “act of transplanting federal rule 56 brings with it the ‘old soil’ of case law interpreting that rule.”

Some key differences and distinctions for Florida practitioners are noted below.
Practice Highlights:

1. Florida’s deadlines are more generous than before and are intended to reduce gamesmanship. The new rule requires that a summary judgment motion be filed at least 40 (not 20) days before the hearing. The nonmovant must respond with its factual position at least 20 (not 5 or 2) days before the hearing.

2. Summary Judgment is no longer disfavored in Florida. As the court announced in WilsonArt v. Lopez, the principles of the Celotex trilogy stand for the proposition that “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part” of rules aimed at “the just, speedy and inexpensive determination of every action.” This will be a welcome change, especially given the backlog created by the Covid-19 pandemic.

3. The Florida Supreme Court seems to be encouraging parties and courts to utilize the new rule and standard. The rule change reiterated the court’s holding in Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020), and made it clear that courts should give parties the opportunity to file a renewed summary judgment motion under the new rule when the motion was denied under the previous Florida Standard. The court also stated that, in cases where pending summary judgment motions are briefed but not decided, the court should allow the parties a reasonable opportunity to amend their filings to comply with the new rule. However, the court noted that “any pending rehearing of a summary judgment motion decided under the pre-amendment rule should be decided under the pre-amendment rule, subject of course to a party’s ability to file a renewed motion for summary judgment under the new rule.”

4. The “slightest doubt” standard is dead and judges are empowered to utilize their common sense when evaluating summary judgment motions. The court cited Scott v. Harris, 550 U.S. 372 (2007), to emphasize that under Florida’s new rule, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”

5. Practitioners must rely on federal case law. The court acknowledged that while the Celotex trilogy is a bedrock of the federal summary judgment standard, “30 years of practice under the trilogy has refined and added to the trilogy and that “courts applying the new rule must be guided not only by the Celotex trilogy, but by the overall body of case law interpreting federal rule 56.”

6. Florida courts will now have to state on the record its reasons for granting or denying a summary judgment. This will ensure that the courts are applying the correct standard.

See Florida’s new Rule 1.510 on Summary Judgment here:



See Supreme Court opinion here:


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Highlights:

• On March 29, 2021, Governor Ron DeSantis signed a bill that shields Florida businesses from lawsuits claiming COVID-19 injuries or damages. 
• Provides legal protections for a broad range of individuals and entities, including businesses, charities, and educational and religious institutions.
• The law applies differently to health care providers.
• Became effective immediately.
• Contains a one-year statute of limitations for COVID-19-related lawsuits, and applies retroactively. For causes of action that accrued before the effective date of March 29, 2021, the statute of limitations began to run on the law’s effective date.

Requirements:

• Plaintiff must plead and prove gross negligence.
• The complaint must include an affidavit signed by a licensed physician stating within a reasonable degree of medical certainty that the Covid-19 related injuries or damages were the result of the defendant’s actions or omissions.
• The court is required to determine whether the defendant made a good faith effort to comply with government-issued health standards or guidelines and if so, the defendant is immune from suit.

Full bill available below.

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Castle Key Insurance Company v. Mark Fischer, No. 1D20-1621 (1st DCA Mar. 16, 2021)

Highlights:

• Insurer accepted partial coverage on the insured’s Hurricane Michael claim.
• After the insured filed the claim, the insurer tendered a check, admitted coverage for some damage to the property but declined to cover other damage.
• The insured tendered a substantially higher proof of loss than the insurer’s estimate.
• The insurer demanded appraisal, pursuant to the insurance policy, within one week after the filing of the proof of loss.
• The insured sued, and the insurer moved to abate litigation and compel appraisal, which was denied by the trial court as the insurer did not “wholly deny” coverage.
• The DCA reversed the order and held that appraisal was appropriate and should not have been denied.   

Full case information available below.

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August 20, 2021
12:00 p.m. - 1:00 p.m. ET

Presenters: Pete Baumberger, Jeremy Chevres, Stephen Cozart

Learn all about construction roadway defect claims and how they relate to technical aspects important to claims investigation, analysis, and defense. The team will focus on operational issues in construction zones, temporary traffic control, standards, proper employee training, construction zone monitoring and accident response.

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


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August 3, 2021
10:00 a.m. - 3:00 p.m. ET

Presenters: Michael Carney, Kara Cosse, Ken Oliver, Greg Prusak

This presentation meets Florida Department of Insurance's 5-620 CE requirement and will cover:

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

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

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July 27, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Scott Gross, Aaron Haak - Members of KD's Construction Practice Group

To educate insurance adjusters to leverage the vouching-in process to achieve advantageous settlement outcomes when dealing with non-participating downstream parties.

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


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July 20, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Marsha Moses, Carmela Jackson, Blake Fiery - Members of KD's Hospitality, Retail and Premises Liability Practice Group

This course will update insurance professionals on matters involving coverage issues and exposure specific to homeowners’ associations, including fiduciary duties, property claims on common areas, catastrophic loss, maintenance, and negligence.

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


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July 13, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Rebecca Brock, Steffen Locascio, Francesca Ippolito-Craven, Jason Friedman - Members of KD's Hospitality, Retail and Premises Liability Practice Group

Learn all about the Florida laws that pertain to skilled nursing facilities.  The KD team will talk about the types of claims asserted against the facilities and how to investigate, defend and evaluate these claims.

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


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June 24, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Caryn Bellus, Brian Chojnowski, Jared Brownfield - Members of KD's KD Hospitality, Retail and Premises Practice Group

This course walks claims professionals and vendors through the new requirements vendors and insurers should be aware of to decrease the likelihood of civil liability.

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




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June 15, 2021
11:30 a.m. - 12:30 p.m. CT

Presenters: Stephen Cozart and Angela Trawick

2020 was a year full of changes and developments! In this one hour course, we will talk about 2020’s developments in Alabama law on topics important to anyone handling claims or litigation in Alabama. The course will cover case law updates on statutes of limitation, relation back of pleadings, forum non conveniens, contributory negligence and workers compensation immunity.

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

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May 21, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Michael Carney, Eli Marger

Do you know how to strategically maximize opportunities for early case resolution? The KD team will review real life examples of tactics that can assist in resolving cases early, and also share experiences where attempts at early case resolution was ultimately counterproductive.

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


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May 18, 2021
12:00 p.m. - 1:00 p.m. EST

Presented by members of KD's Construction Practice Group
Presenters: Peter Baumberger and Raquel Loret de Mola

Learn about the intricacies related to defending construction-accident litigation and why retaining defense counsel that is prepared to handle these types of cases and the corresponding challenges that may arise is important.

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


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May 12, 2021
12:00 p.m. - 1:00 p.m. EST

Presented by members of KD's Hospitality, Retail, and Premises Liability Practice Group
Presenters: Michael Carney, Victoria Hammonds, Katherine McGovern, Talya Van Embden

Get your paws wet on the topic of dog bite liability and learn tips for preventing, evaluating and defending these claims. Promise we won’t bark information at you!

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


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May 7, 2021
9:00 a.m. - 2:00 p.m. EST

Presenters: Michael Balducci, Michael Carney, William Sabinson, Charles Watkins

The complimentary webinar meets Florida Department of Insurance's
5-620 CE requirement and will cover:

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

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


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May 4, 2021
10:00 a.m. - 11:00 a.m. EST

Presenters: Peter Baumberger and Benjamin Cohen

This presentation will discuss and review Liens and Set offs.

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


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April 27, 2021
11:00 a.m. - 12:00 p.m. EST

Presenters: Kenneth Oliver and Special Guest Dr. Geoffrey A. Negin MD

This presentation will demonstrate the various radiographic imaging techniques such as X Ray, CT Scans and MRI scans in providing objective evidence and its effectiveness in negotiations, mediations, arbitrations and jury trials through the use of case studies in the context of spinal injuries and traumatic brain injuries.

For more information, or to register please contact info@kubickidraper.com.
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April 20, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Caryn Bellus, Jared Brownfield, and Brian Chojnowski

This terribly good course addresses the oxymoronic concepts of premises liability claims for off-premises injuries. Learn when landowners and businesses are definitely maybe liable for injuries occurring off of their property in the context of the general rules of premises liability and case specific rules arising from unique factual circumstances.

For more information, or to register please contact info@kubickidraper.com.
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April 13, 2021
12:00 p.m. - 1:00 p.m. EST

Presenters: Kimberly Beckwith and Francesca Ippolito-Craven

Explore the various theories of liability and case law dealing primarily with accidents/injuries that arise out of gym setting. Learn about the different types of actions, various defenses, and potential exposure. The presenters will share real life examples of handling these claims.

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


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April 8, 2021
12:00 p.m. - 1:00 p.m.

Presenters: Harold Saul, Pedro Lopez, Sharon Degnan

Construction accident cases typically involve employees of the contractor or subcontractor, which generally elect to receive immediate benefits from workers compensation. It is critical to understand the defenses available to insured contractors should the injured employee decide to sue. Join us to learn all about these defenses.

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

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March 26, 2021
10:00 a.m. - 11:00 a.m.

Presenters: Ken Oliver, Jason Friedman and Co-Presenter, Bill Fischer with Fischer Forensic Engineering

Want to learn more about using video data and other digital technology successfully in accident reconstruction, mediations and trial? This one-hour course will explore and demonstrate the importance of obtaining evidence from the surrounding scene of an accident, the vehicles involved, and other devices such as body cams.

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


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March 23, 2021
10:00 a.m. - 3:00 p.m.

Presenters: Ken Oliver, Charles Watkins, Jason Friedman, Jennifer Remy-Estorino, Jennifer Feld

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 5-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

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

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March 11, 2021
12:00 p.m. - 1:00 p.m.

Presenters: Charles Kondla and Michael Suarez

OSHA, and particularly OSHA investigations and decisions, often come into play in the litigation of workplace-related incidents. The goal of this presentation is to explore OSHA’s role in such litigation, including admissibility issues, potential pitfalls and strategic steps to take when navigating OSHA issues in cases.

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


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IN THIS ISSUE:

• KD in the Community
• News | Annoucements
• Meet Our Newest Shareholders
• New Team Members
• Spotlight on Anthony G. Atala
• Dram Shop Liability for Open and Closed Container Service
• Battling Unsavory Foodborne Illness Claims: Understanding the Potential Causes of Action and Attacking the Use of Circumstantial Evidence
• Florida Adopts the Federal Summary Judgment Standard: A Summary
• Recent Results: Appellate, Trials, Motions, Mediations
• Presentations / Speaking Engagements
• Save the Date: KD’s Construction Conference Set for October 15

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Brian Chojnowski

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IN THIS ISSUE:

• Spotlight on: Kara K. Cosse
• More KD News
• New Additions
• 2020 Florida Super Lawyers and Rising Stars
• Glass House or Brick Wall: Using Policy Condition Violations Realistically to Defend a Claim
• Anti-concurrent Cause: A Shield, a Sword, or Both? You Decide.
• Join Us on LinkedIn
• Can I Get a Lime With My Corona? I Caught Covid at Your Place
• Landlords and Lenders COVID-19 Reality Check: Is that check in the mail?
• Recent Results: Appellate
• Recent Results: Trials, Motions, Mediations
• Presentations & Speaking Engagements
• Perspectives: KD Attorneys Reflect on their Experiences with Racism and Their Hopes for the Future

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As temperatures begin to cool down, and snow birds and tourists return to Florida, premises liability claims against condominium associations are beginning to heat up. Interested in learning about potential liability for condos?

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IN THIS ISSUE:

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

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In Avatar Property and Cas. Ins. Co., v. De Caires, 2021 WL 3176774 (Fla. 3d DCA July 28, 2021), the Third District Court of Appeal reversed the entry of a directed verdict on damages in favor of the plaintiff/insured in a first party property insurance claim.  The Court agreed with the insurer’s position that the evidence demonstrated that the defense vigorously contested the amount of damages claimed, and while the defense did not present its own expert witness on the amount of damages, that did not mean that the entry of a directed verdict for plaintiff was correct.  Rather, the record showed that significant conflicting testimony was elicited by the defense from the plaintiff’s own witnesses.  Consequently, it was error to enter a directed verdict on damages for $80,830.16 where conflicting evidence regarding the amount of damages suffered existed such that the jury could reach different reasonable inferences.  Read more here.


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Caryn Bellus and Angela Flowers obtained an affirmance of an attorney fee and cost award after a defense proposal for settlement.

This is the second of two winning appellate decisions in Pelecki v. Federated National Insurance Company, 5D19-3702 (Fla. 5th DCA May 14, 2021).

In the first, the homeowner, Andrea Pelecki, appealed a $0 final judgment in favor of her insurer, which arose from a jury verdict in her favor for $15,000 less a setoff of $30,000 for insurer’s prior settlement with plaintiff’s husband.

In this second appeal, Andrea challenged a judgment of $126,047.14 for the insurer’s trial attorney’s fees and costs based on her rejection of the insurer’s $5,000 proposal for settlement to her.  The Fifth District affirmed the award of fees and costs, except for a small award of costs for an expert who did not testify at trial. 

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Bretton Albrecht, Caryn Bellus, and Bill Bissett, obtained an affirmance of a final defense summary judgment in favor of our client, the Law Firm of Akerman, LLP in Tien v. Akerman, LLP, Case No. 3D19-0281. (Fla. 3d DCA, May 5, 2021).

Tell me about it:

What did appellate court do:

KD’s appellate attorneys are available to assist you with questions about Florida’s new summary judgment standard and/or any other issues.


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Travis J. Beal, of our Ft. Lauderdale office, won a Daubert motion and corresponding Motion in Limine in a toxic-tort case successfully excluding Plaintiffs’ expert’s causation opinions. Specifically, the court ruled that “without reliable information about the actual levels of exposure, any opinion [the neuropsychology and neurotoxicology expert] could offer linking Plaintiffs’ exposure to the products used in the renovations with particular health outcomes is unreliable and speculative.”

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Jonathan O. Aihie, of our Miami office, won the firm’s first virtual motion for summary judgment. By way of background, the insurance carrier accepted coverage in a plumbing leak case and issued payment in the amount of $10,000 for the insured’s property damage. The insured never requested any supplemental payment before filing suit, so there was no breach of contract. Thereafter, Jonathan deposed the insured who testified that it only cost $4,000 to complete the repairs. Jonathan then filed a motion for summary judgment because the insured could not prove damages to support his breach of contract lawsuit. Plaintiff’s dilatory response attached a $49,000 estimate and photographs, but the documents were unsworn, and Jonathan moved to strike them accordingly. The court declined to consider the response and granted the motion for summary judgment.

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Jill Aberbach, of our Ft. Lauderdale office, was granted final summary judgment in a consolidated case brought by the insured and the AOB. The denial was based on a no peril created opening that had been going on for way too long. Plaintiffs tried every delay tactic possible to keep the motion from being argued. At the hearing, Plaintiffs argued that summary judgment should be denied because there was a question of fact, notwithstanding she admitted that she never saw water coming through any opening after the subject storm. Further, Jill successfully argued Plaintiff’s expert was not credible since they inspected the property too long after the incident.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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