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Fourth District Reverses Final Default Judgment Where Meritorious Defenses Are Raised

May 25, 2023

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KD Volunteers at Miami Carol City High School

May 24, 2023

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Stephen Cozart Voted Into American Board of Trial Advocates (ABOTA)

May 16, 2023

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Building Total Loss? See the VPL

May 16, 2023

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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

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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.

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

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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.

Fourth District Reverses Final Default Judgment Where Meritorious Defenses Are Raised

May 25, 2023

In Wolf v. Peter M. Hashaby, P.A., the Fourth District overturned the entry of a default final judgment because the defendants demonstrated excusable neglect, meritorious defenses, and due diligence. The trial court found that defendants failed to demonstrate excusable neglect for their attorney’s failure to attend a case management conference based on the history of the case, which included a previous default. In addition, despite having filed an answer that included 23 affirmative defenses, the trial court found that defendants had not demonstrated the existence of meritorious defenses. The Fourth District disagreed and held that the attorney’s affidavit adequately demonstrated excusable neglect and that the affirmative defenses established meritorious defenses. Read more here. 


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KD Volunteers at Miami Carol City High School

May 24, 2023

Jonathan Aihie, Erika Cordovi, Gregory Prusak, Anthony Atala, Barbara Fox, Yvette Pace, and Michael Carney recently helped judge Miami Carol City Senior High School Law Magnet Program’s mock trials. For several years now, the KD team has enjoyed assisting the students and providing tips on how to succeed in the legal profession. 
 
Mentoring matters to us in-house and out in our community -- we are proud to have team members that step up for important events like these that influence and help future stars.
 

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Stephen Cozart Voted Into American Board of Trial Advocates (ABOTA)

May 16, 2023  By:  Stephen M. Cozart

We are proud to announce Stephen Cozart, of our Pensacola office, was voted into the Northwest Florida Chapter of the American Board of Trial Advocates (ABOTA). ABOTA is an invitation-only organization dedicated to promoting and improving the American civil justice system and to preserving the Seventh Amendment right to civil jury trial. We are happy to have yet another KD member join this important group. Congratulations, Steve!


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Building Total Loss? See the VPL

May 16, 2023

Valued Policy Law (VPL) claims in Florida have increased significantly. These claims involve alleged total losses to property caused by events such as fire, lightning, wind or even floods. 

Valued Policy Law is intended to fix the measure of damages payable to the insured in case of total loss to property. Florida Statute 627.702 provides that when any building or structure sustains a total loss as a result of a covered peril, the liability for said loss shall be the amount of money for which the property was insured. This applies to building coverages, but does not apply to other structures, personal property claims, additional living expenses, or ordinance and law coverage. Florida’s Valued Policy Law is not intended to expand coverage or to deprive insurers of any defenses available to it via the policy of insurance.
 
When analyzing whether Valued Policy Law applies to a property insurance claim, it is important to carefully evaluate the policy language regarding covered and excluded perils. Contact our First Party Property Group for assistance with any residential and/or commercial questions, firstpartyproperty@kubickidraper.com.

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KD Celebrates Asian American and Pacific Islander Heritage Month 2023

May 5, 2023

May is Asian American and Pacific Islander Heritage Month, and as part of KD’s commitment to DEI, we are sponsoring The Asian Pacific American Bar Association of South Florida’s first annual Legal-Business Nexus recognizing Asian American Excellence in Florida. The event is set to take place May 16 at 6:00 p.m. in the Broward County Bar Association building in Ft. Lauderdale, Florida. 
 
We invite you to join us and/or learn more about this first-of-its-kind celebration honoring notable legal and professional Asian Pacific American elites across the State, HERE.
 

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Mental Health Awareness Month 2023

May 2, 2023

In recognition of Mental Health Awareness Month and its importance, the KD team is being invited to participate in a variety of activities that focus on creating positive habits to support mental health. The activities include meditation and breathing exercises to help reduce stress and increase memory and mental clarity. 
 
We invite everyone to join us and pause to do things that help improve both physical health and mental health – just a few minutes count in a big way. For helpful self-care tips, visit: https://www.nimh.nih.gov/health/topics/caring-for-your-mental-health.


 

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National Hurricane Preparedness Week 2023

May 1, 2023

It’s that time again! National Hurricane Preparedness Week started yesterday and although forecasters predict a “slightly below average” hurricane season, being prepared is always key. We have included some tips and helpful links to help you prepare:
 
Know your zone so you know when to evacuate, if necessary
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 professional, remember to check your license status 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 welcome you to join our upcoming webinars announced on here on our website and on our LinkedIn, Instagram and Twitter profiles. We are also happy to schedule a private complimentary webinar for you and your team. To learn more about our presentations and/or to be added to our invite list, contact us at info@kubickidraper.com.
  

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New Split Among DCAs As to Applicable Medicare Part B Reimbursement Rate—Participating Price versus Limiting Charge

April 27, 2023

In Progressive Select Insurance Company v. In House Diagnostic Services, Inc., a/a/o Darryl Frazier, No. 4D21-2581 (Fla. 4th DCA April 26, 2023), the Fourth District concluded that the proper reimbursement rate under the Florida PIP Statute—section 627.736(5)(a), Florida Statutes (2013)—must be calculated using the 2007 Medicare Part B non-facility participating price, as opposed to the higher 2007 Medicare Part B non-facility limiting charge, which the Third District approved in Priority Medical Center, LLC. a/a/o Susan Boggiardino v. Allstate No., 319 So. 3d 724 (Fla. 3d DCA 2021), and the Fourth District previously adopted in Allstate Fire & Casualty Insurance Co. v. Jeffrey L. Katzell, M.D., P.A., 323 So. 3d 191 (Fla. 4th DCA 2021). In receding from Katzell, the Fourth District accepted the insurer’s argument that the Medicare limiting charge does not function as a fee schedule; rather it is a term Medicare defines as an amount a provider may bill if said provider does not accept assignments of Medicare claims. The Fourth District also found that utilizing Medicare limiting charges in calculating reimbursement in the context of section 627.736(5)(a) is erroneous based on the statute’s language. For more information, see the Court’s opinion.


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KD Celebrates Administrative Professionals' Day 2023

April 26, 2023

Thanks to our dedicated, highly-skilled work family, we can provide our clients the best service possible. We hope today especially, our team knows how very much their work is valued, and how very much they are appreciated.
 
Thank you Team KD, for your support and the many contributions you make to our success every day.
 
We wish you and all hard-working professionals out there, a wonderful day! 

 

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KD Celebrates Diversity Month 2023

April 18, 2023

The fabric of our Nation is sewed together from many different threads and cloths, the final product is constantly evolving -- as it should be. This makes us strong, it makes us unique, it brings challenges. Overcoming the challenges, gives us purpose and matchless greatness.


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KD Supports MDFAWL: Women Making History Award and Scholarship Reception

April 17, 2023  By:  Alexandra C. Caraballo and Karenny Montan and Samantha M. Joseph and Nicole Lauren Wulwick

KD is proud to have once again sponsored a scholarship for the Miami Dade Florida Association for Women Lawyers (MDFAWL) Scholarship Program. Some of our Miami attorneys: Alexandra Caraballo, Samantha Joseph, Karenny Montan, and Nicole Wulwick, recently attended MDFAWL’s Women Making History Award and Scholarship Reception in support of KD’s recipient this year: Amanda Hernandez, a 2nd year law student at St. Thomas University in Miami, Florida. We are proud to support an organization that focuses on promoting the advancement of women in legal professions and invite you to learn more about the organization and its scholarship program here: https://www.mdfawl.org/.




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KD Attends Stetson Law's Inaugural Career Fair

April 7, 2023  By:  Maegan Bridwell and Paulette Z. Brown and Tracie T. Reese

Maegan Bridwell, Tracie Reese and Paulette Brown, of our Tampa office, represented KD at Stetson Law’s Inaugural Career Fair earlier this week.  The fair offered a new platform for law firms, legal employers and students to connect, and our team had a great time engaging with students and offering them valuable insight to assist with the transition from campus to career.
 
Our summer program provides opportunities to participate in a broad and exciting range of legal work. Contact us today, for more information!


 

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Jane Rankin Awarded AV Preeminent Rating for 25th Consecutive Year!

April 5, 2023  By:  Jane Carlene Rankin

Congratulations to Jane Rankin, who has continuously earned Martindale-Hubbell’s AV Preeminent Rating for the past 25 years! This rating is awarded to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers. For more information about Martindale-Hubbell and its ratings, visit: https://www.martindale.com/ratings-and-reviews/.

 
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Florida Tort Reform is Here!

April 3, 2023

Governor Ron DeSantis signed House Bill 837 into law on March 24, 2023, enacting sweeping changes to civil litigation in the state. The new law touches on issues ranging from attorney’s fees to negligence standards to bad faith claims, and applies to all claims that accrue after the law’s March 24, 2023 effective date. For evidence of the impact these changes are expected to have, one need look no further than new case filings across the state. In the weeks leading up to the law’s passage, approximately 100,000 new suits were filed, which is over three-quarters of the number of filings since the first of the year. We have been monitoring the progress of this law closely, and summarize the major changes and their potential impacts below. 
 
Fees, fees, fees.
 
Perhaps no issue received more attention as the bill progressed through the legislature than its effect on attorney’s fees claims. Florida has long been known for its “one way” attorney’s fees statutes, which required courts to award attorney’s fees to an insured when they prevailed in an action against their insurer. Fee claims are much more limited under the new law, as it repeals these statutes, §627.428 and §626.9373, in their entirety. However, the law also creates a new statute providing that the Offer of Judgment statute, §768.79, applies in civil actions involving insurance contracts. And, it adds a provision to Florida’s Declaratory Judgment Act, providing for an award of fees to an insured who obtains a declaratory judgment determining coverage in their favor, but only when the insurer has totally denied coverage. Importantly, a defense offered under a reservation of rights is not considered a denial, the fee claim is non-transferable, and the statute does not apply to actions arising under residential or commercial property insurance policies. Several other statutes were amended to reflect the repeal of §627.428 and §626.9373, most notably §627.756, which addresses attorney’s fees claims in certain construction disputes. That statute now independently provides for an award of fees against surety insurers in actions brought by owners, contractors, subcontractors, laborers, or material men under payment or performance bonds. 
 
The law also changes the way attorney’s fees awards are calculated in contingency fee cases. Previously, Florida courts have applied “contingency fee multipliers” based on the likelihood of success at the outset of the case. Under the new law, there is a “strong presumption” that the lodestar fee—which is based on the number of attorney hours reasonably expended on the matter multiplied by the reasonably hourly rate—is a sufficient and reasonable award. Multipliers are now limited to “rare and exception circumstances” where competent counsel could not be otherwise retained. 
 
New rules for negligence claims.
 
Previously, under Florida’s “pure” comparative negligence scheme, defendants were required to pay damages based on their percentage of fault in causing harm to the plaintiff. The new law institutes a “modified” comparative negligence standard, which bars recovery if a plaintiff is found to be more than fifty-percent negligent. This provision is expected to reduce the number of cases brought in which the plaintiff was a significant contributor to their own injuries.  
 
The law also creates new liability standards for certain negligence cases. One important change is in premises liability actions where the plaintiff was harmed by the criminal act of a third party. Previously, third parties could only be placed on the verdict form for apportionment of fault if their action constituted negligence. Thus, a third party criminal who injured or killed an invitee, guest, or tenant on a landowner’s property could not be deemed “at fault” in a resulting civil negligence action. Under the new law, the fact finder will be required to consider the fault of all parties who contributed to the injury, including the criminal themselves. This means the criminal third party can be apportioned a percentage of fault as a Fabre or third party defendant, or even potentially defaulted on liability. 
 
In negligent security claims, the new law creates a presumption against liability for the owner or operator of a “multifamily residential property” in connection with criminal acts committed on the property by third parties, if the owner or operator demonstrates “substantial compliance” with certain security measures designated by the statute. These measures include periodic crime assessments and crime and safety training for employees, as well as equipping the property with security cameras, lighted parking lots and other common areas, deadbolts and locking devices on dwelling doors and windows, peepholes, and locked gates along pool fence areas. This change will provide a potent defense where the property owner can demonstrate their compliance with the statute. 
 
Finally, the law shortens the statute of limitations for negligence actions from four years to two years. This shortened timeline is expected to cause plaintiffs to evaluate and file their claims sooner, increase the ability to obtain evidence and testimony, and create incentive to settle where liability is contested. However, it only applies to claims accruing after the law’s effective date. This means the date of injury will be important in evaluating new negligence lawsuits, as injuries occurring prior to March 24, 2023 will generally be subject to the old four-year timeframe. 
 
Medical expenses and letters of protection.
 
Several recent cases, including from the Florida Supreme Court, have addressed the issue of the proper measure of a plaintiff’s recovery for past and future medical expenses where full amount of the plaintiff’s bills were satisfied for a lesser amount. Until now, plaintiffs were generally permitted to introduce the full amount of their medical bills into evidence, without consideration of what was actually paid. Adjustments or reductions were addressed via post-trial setoffs, except in cases involving Medicare or Medicaid, in which only the amount actually paid to the medical provider was admissible. Some opinions expressed discomfort with this system, finding it incompatible with the principal that compensatory damages should address losses the plaintiff actually sustained. 
 
Under HB 837, plaintiffs will be limited to introducing evidence of the amount actually paid to satisfy their medical bills, regardless of who paid. If the plaintiff has health coverage, evidence of the amount that the insurer paid the provider will be admissible. If the plaintiff has health coverage but opts to obtain treatment under a letter of protection, evidence of the amount the plaintiff’s insurer would have paid is admissible, plus reasonable amounts billed to the plaintiff for medically-necessary treatment. If the plaintiff does not have health coverage, or has coverage through Medicare or Medicaid, evidence of 120% of the applicable Medicare rate is admissible. And, if there is no applicable Medicare rate, evidence of 170% of the state Medicaid rate is admissible. 
 
Future medical expenses will also factor in the plaintiff’s available health coverage. If the plaintiff has coverage other than Medicare or Medicaid, evidence of the amount the insurer would pay for future treatment, plus the plaintiff’s reasonable share, is admissible. If the plaintiff does not have health coverage, or has Medicare or Medicaid, evidence of 120% of the applicable Medicare rate is admissible. And, if there is no applicable Medicare rate, evidence of 170% of the state Medicaid is admissible. 
 
On a related point, where a plaintiff receives treatment under a letter of protection, the letter must be disclosed, as must all bills for medical expenses. The bills must be itemized and coded according to whether the provider is billing at a provider level, a facility level in a clinical or outpatient setting, or a facility level in an inpatient setting. The sale of a plaintiff’s account to a third party must also be disclosed, including the dollar amount. Most notably, where the plaintiff is referred by their attorney for treatment under a letter of protection, that referral must be disclosed, along with the relationship between the attorney and the medical provider, as relevant to the issue of bias of the provider. This provision overturns the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Association, Inc., 228 So. 3d 18 (Fla. 2017), under which the referral relationship between plaintiff’s attorneys and providers was protected by attorney-client privilege.  
 
New standards for bad faith claims.
 
Last, but certainly not least, HB 837 makes multiple changes to Florida’s bad faith law. The law creates a safe harbor for bad faith liability where a liability insurer tenders the lesser of its policy limits or the amount demanded by the claimant within 90 days of receiving actual notice of the claim and sufficient evidence to support the amount of the claim. The existence of this safe harbor period is inadmissible in an action seeking to establish bad faith, and, if the insurer does not tender in that time period, the statute of limitations is extended for 90 days. 
 
Next, the law establishes that an insurer’s negligence alone is insufficient to establish bad faith. And, the law imposes a duty on the insured, claimant, and any representative to act in good faith in furnishing information, making demands of an insurer, setting deadlines, and attempting to settle a claim. The fact finder will now be able to consider any bad faith conduct of the insured, claimant, or their representatives in assessing bad faith damages.
 
Where an insurer faces competing demands from multiple third parties arising from a single occurrence which in total exceed policy limits, the insurer can insulate itself from bad faith liability by filing an interpleader action or arbitration. In an interpleader action, if the third-party claims are found to be in excess of the policy limits, the claimants are entitled to a prorated share of the limits as determined by the trier of fact. Importantly, the filing of an interpleader action does not alter the insurer’s duty to defend. Similarly, in an arbitration, the insurer is required to make the full policy limits available for payment to the competing claimants, who would have their claims determined by a qualified arbitrator based on the comparative fault, if any, of the claimants, and the total likely outcome at trial based on the total of economic and noneconomic damages.
 
The implications of the new law are far reaching. Many of the issues touched upon here will undoubtedly result in litigation and appeals. 

For more information or discussion, do not hesitate to contact us at appellateandcoverage@kubickidraper.com.
 

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Legal Update: Updates on the Florida Tort Reform Bill

March 17, 2023

The House and Senate have been in regular communication and negotiations to move each chamber’s bill forward concurrently. While each chamber thus far has adopted varying language, as of this week, the bills have begun to narrow and mirror each other substantially. Specifically, each chamber’s bill has identical portions regarding bad faith and attorney’s fees. 
 
Fla. Stat.  624.155 – bad faith provisions
The proposed changes state an insurer cannot be liable for bad faith with respect to a liability insurance claim if the insurer tenders the lesser of the policy limits or the amount demanded by the client within a certain period of time after receiving notice of the claim. Both chambers have agreed that this time period will be set at 90 days.
 
Additionally, the bills also would change Fla. Stat. 624.155 to state that negligence alone is insufficient to constitute bad faith, that a court can adjust a damages award if a third-party claimant or insured does not act in good faith, and that an insurer does not commit bad faith by failing to pay multiple competing claims arising out of one accident—even if those claims’ total exceeds the policy limits—so long as the insurer within 90 days either files an interpleader action or makes the full policy limits available before an arbitrator is selected. 
 
Fla. Statutes 627.428 and 626.9373 – Attorney’s Fees
The proposed changes would fully repeal both of these statutes. However, they create a new section to Chapter 86, Fla. Stat., which creates a right of action for declaratory relief to determine insurance coverage only after denial of a claim.
  • In doing so, the court shall award attorneys fees to the named insured, omnibus insured, or named beneficiary under the policy at issue upon rendition of a declaratory judgment in their favor. 
  • Additionally, this right would not be transferrable, assignable, or acquired by any other manner by anyone other than a named or omnibus insured or a named beneficiary.
  • Explicitly stating that a defense by insurer of reservation of rights does not constitute denial of claim.
 
Enactment
These changes would only effect prospective claims arising after the enactment date.
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International Woman's Day

March 8, 2023

Today, is International Women’s Day, a day celebrated around the world to mark and recognize the achievements of all women. This year’s theme is #EmbraceEquity.
 
“You Define Success…Together, We Achieve It,” Kubicki Draper’s motto, could not be more well-suited for this global day celebrating the social, economic, cultural, and political achievements of women. Our firm is committed to promoting a culture that creates opportunities for women and supports their professional endeavors. Proudly, Kubicki Draper is led by an Executive Board, half of which are women. 75% of our employees are women, 56% of our attorneys are women, and 54% of our shareholders are women.  Our firm would not be what it is today without you – THANK YOU! 
 
I am honored to share some of our leaders’ voices about this important and reflective day over the next few weeks. -Brad McCormick, Firm President, Executive Board Member and Equity Partner

 

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Wild Rides: The Roller Coaster in Theme Park Claims - Helpful Takeaways

January 12, 2023  By:  Raquel Lauren Loret de Mola and Katherine McGovern

 
This presentation focused on the duties owed to guests, the potential tort claims that may arise and the potential defenses that may be available. Below are some quick tips to remember when handling theme park claims.
 
  • Start the investigation early – it may be difficult to track down key witnesses years later. Even if you are unable to secure surveillance footage of the incident, someone may have captured footage on a cell phone video which could be critical to your defense!
  • Check on plaintiff’s legal status at the time of the incident. Plaintiff's legal status dictates the duty owed to them by the theme park.
  • Courts have moved away from applying a heightened duty onto theme parks; duty should be assessed the same way in these factual scenarios as it is assessed in any other premises liability cases.
  • When a lawsuit involves a theme park ride, the courts in Florida dive into each case’s individual facts and really analyze the nature, construction, and operation of the ride itself that allegedly caused the injury.
  • The courts have consistently held that the care required by a park must correspond with the risk involved. 
  • Whether reasonable care was exercised, is a question of fact for the jury.
 
If you have any questions about this presentation and/or would like to discuss a specific theme park claim issue, our team is ready to assist: premises@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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Yvette Pace to Participate in FL Bar's Advanced Trial Advocacy Course

April 10, 2023  By:  Yvette M. Pace

Yvette Pace, of our Orlando office, is slated to participate as a faculty member in the Florida Bar Trial Section’s Advanced Trial Advocacy Course, May 16-20 at the UF Levin College of Law. The course is an intense, hands-on trial skills training in an interactive format with presentations and demonstrations by judges and trial attorneys from across the State of Florida. To register and/or to learn more, visit: https://floridatls.org/event/cle-advanced-trial-advocacy-2023/.


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KD Co-Sponsors AJC Judge Learned Hand Award Dinner

April 6, 2023

KD is pleased to support the American Jewish Committee (AJC) and co-sponsor its Judge Learned Hand Award Dinner scheduled for May 18, honoring Richard P. Cole. AJC is a global advocacy organization that works to create a brighter future for the Jewish community with global diplomacy and coalition building. To learn more about AJC, visit https://www.ajc.org/.


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Fraud Awareness Symposium & Live Burn Demonstration 2023

April 4, 2023

KD is pleased to co-sponsor this year’s Fraud Awareness Symposium & Live Burn Demonstration hosted by the South Florida International Association of Investigation Units(SF-IASIU) on April 14 at the Miami Dade Fire Headquarters in Doral. The event offers two Florida continuing education credits and will include presentations about claim losses involving exotic car rentals, as well as about fraud and abuse of money laundering. Additionally, you will not want to miss the live burn of an electric vehicle and electric scooter! To learn more about SF-IASIU and/or the event, visit the link here: https://www.floridaiasiu.org/south.
 

 

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April 2023 Webinar - Florida 4-Hour Law and Ethics Update

March 14, 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
April 11, 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

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

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Join Us for Our CE Webinar in March!

February 23, 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! 

KD's Hospitality Retail and Premises Liability Pratice Group Presents:
Getting Real About Realtors’ Liabilities 
March 30, 2023
12:00 PM - 1:00 PM EST

Join our team to learn the importance of understanding what law may apply to a claim against a real estate agent, as well as the venue, forum, and applicable defenses for same.

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

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16th Annual Frank Crum Invitational Golf Tournament

February 22, 2023



KD recently sponsored the 16th Annual Frank Crum Invitational Golf Tournament to benefit Feeding Tampa Bay, a national Feeding America network that focuses on providing meals to food insecure families in the 10-county area of West Central Florida. We are happy to support this great cause and thank Michelle Krone, Bryan Krasinski and Sean Kelly Xenakis for participating on the firm’s behalf.
 
Fore more information about Feeding Tampa Bay, please visit: https://feedingtampabay.org/
 

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Legal Refresher to Engineers

February 22, 2023




Michael Suarez and Mark Young recently presented a legal refresher to engineers for the American Society of Civil Engineers of the Broward Branch where they reviewed the importance of using the protections of Fla. Stat. 558.0035 to limit personal liability in design contracts. 

For more information about the presentation and/or questions about a design contract, contact us at info@kubickidraper.com.
 

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Sign up today for a DE&I conversation with Charles Watkins

February 21, 2023



As part of the National African-American Insurance Association (NAAIA), Florida Chapter’s Black History Month celebrations, NAAIA is hosting a DEI conversation with our very own, Charles Watkins.  The interview is scheduled for February 27 beginning at 5:30 pm EST. As Kubicki Draper’s Chief Diversity, Equity and Inclusion Officer, Charles brings a wealth of experience and insight to the topics of both insurance and DE&I.

For more information and/or to register for this event, visit:https://events.r20.constantcontact.com/register/eventReg?oeidk=a07ejmx6uue310bc923&oseq=&c=&ch=. 


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University of Florida Law Center Association Board of Trustees Meeting

February 6, 2023  By:  Rebecca Leigh Brock



The UF Law Center Association recently held its Winter 2023 Board Meeting in Palm Beach County to focus on UF Law’s role in the new campus in West Palm Beach. The Board is comprised of attorneys, judges, legislators, and business owners. Our very own, Rebecca Brock, is currently serving as the Secretary of the Board. We are proud to support Rebecca and the organization which assists in UF’s budgetary process and facilitates student mentoring programs, among other things.

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Join Us for Our CE Webinar in February!

January 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! 

KD's Hospitality Retail and Presmises Liability Practice Group Presents:
 We Got Your Back! -- Examining and Defending Spinal Injury Claims
 February 22, 2023
 12:00 p.m. - 1:00 p.m. EST 
Plaintiffs often claim to suffer spinal injuries in all types of liability cases. Join us to review the type of injuries being claimed, the anatomy of the spine, as well as the differences between bulges and herniated discs.

We will also discuss the numerous ways to effectively defend these types of claims, especially from the causation, damages, and long-term impact perspective. The course is designed to explain how to effectively address these issues with a jury.

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

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January 2023 Webinar - Florida 4-Hour Law and Ethics Update

January 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! 

Florida 4-Hour Law and Ethics Update
Jan 31, 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

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

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Join us for our CE Webinar in January

December 19, 2022

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! 

KD's Appellate and Coverage Practice Group Presents: 
Top 10 Ways Your Appellate lawyer Can Help You

January 12, 2023 
12:00 p.m. - 1:00 p.m. EST 

This course will demonstrate how involving an appellate lawyer at every stage of litigation can help claims handlers and general counsels develop key legal issues and lead to resolution of cases. 

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

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December 2022 Webinars

November 18, 2022

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 Construction Group: 
Litigating Construction Accidents: Tactics to Combat Trends

December 1, 2022 
12:00 p.m. - 1:00 p.m. EST

This webinar will review the intricacies related to defending construction-accident litigation and the need to retain defense counsel that is prepared to handle these types of cases and the corresponding challenges that may arise.

KD's Hospitality, Retail and Premises Liabiality Practice Group Presents:
Wild Rides: The Rollercoaster in Theme Park Claims

December 15, 2022 
12:00 p.m. - 1:00 p.m. EST 

Because amusement parks and attractions encompass a significant part of Florida’s economy, the likelihood of potential claims and lawsuits increases along with the corresponding litigation costs, administrative fines, attorneys’ fees, etc. This presentation will review park duties to guests, the potential tort claims that may arise, as well as potential defenses that may be available.

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

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KD's Construction Conference – November 4 in Tampa

November 4, 2022

Join Kubicki Draper's Construction Group on Friday, November 4 in Tampa, Florida for a full day of interesting construction presentations!

If you are a construction claims professional, you won't want to miss it!

This complimentary event is designed to provide claims professionals with valuable information that will broaden construction and risk knowledge and will assist in claims handling and management of construction cases. Lunch is included and guests are invited to stay for a cocktail reception immediately following the program.

Attendees will be eligible to receive 1 Florida Continuing Education Credit for each topic attended.

Space is limited, so register today!


Conference Program

Considerations in Defending Contractors Involved in Public Projects
Learn about various issues that arise when defending contractors who are involved in public projects in Florida. This course will review the statutory and legal implications.

Experts, Evidence and Daubert: The Admissibility of Evidence in Construction Defect Claims
From pre-suit statutory 558 investigations to trial testimony, experts are one of the most critical aspects to litigating construction defect claims. In this course, we discuss pre-suit considerations, retention of “qualified” experts, testing protocols, Daubert challenges, and more. Actual case studies are used to apply theory to reality and improve your ability to properly evaluate and litigate a wide variety of construction defect claims.

Controlling Expert Costs in Construction Related Cases
A discussion of the various aspects of expert retention and why each step in the process is critical -- from selecting the right expert, to communicating and providing information and being concise in scope, all while being cost-effective.

Keeping up with Construction Coverage: An Overview of Florida Law
In this course, you will learn how to navigate the current law in Florida with respect to coverage in the construction defect arena along with practical tips and a discussion of current events.

Risk Transfer – Seeking Entitlement to Indemnity/Defense before Trial
Learn effective ways to transfer risk and/or pursue and/or defend entitlement to indemnity and defense claims in order to gain leverage and best protect your client.

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

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November 2022 Webinars

October 31, 2022

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 Appellate and Coverage Practice Group Presents:
Top 10 Ways Your Appellate Lawyer Can Help You 

November 10, 2022
12:00 p.m. - 1:00 p.m. EST

This course will demonstrate how involving an appellate lawyer at every stage of litigation can help claims handlers and general counsels develop key legal issues and lead to resolution of cases. 

Florida 4-Hour Law and Ethics Update

November 16, 2022
11:00 a.m. - 3:00 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

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

Continue...
KD Webinar: Wild Rides: The Roller Coaster in Theme Park Claims

September 28, 2022  By:  Raquel Lauren Loret de Mola and Katherine McGovern

September 28, 2022
12:00 p.m. - 1:00 p.m. EST

Presented by KD's Hospitality, Retail and Premises Liability Practice Group

Presenters: Raquel Loret de Mola, Lisandra Guerrero, Katherine McGovern

Because amusement parks and attractions encompass a significant part of Florida’s economy, the likelihood of potential claims and lawsuits increases along with the corresponding litigation costs, administrative fines, attorneys’ fees, etc. This presentation will review park duties to guest, the potential tort claims that may arise, as well as potential defenses that may be available.

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


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KD Webinar: An Overview of Punitive Damage Claims in Florida

August 25, 2022

August 25, 2022
12:00 p.m. - 1:00 p.m. EST

Presented by KD's Appellate and Coverage Practice Group:

Presenters: Jacqueline Bertelsen, Michael Clarke, Sharon Degnan

This course will provide attendees with a basic understanding of the legal grounds upon which punitive damages can be awarded against individual and corporate defendants. It will also address the basic pleading requirements and evidentiary showing needed to permit punitive damage claims to be pursued under Florida law. The presenters will review the recent rule change in the Florida Rules of Appellate Procedure which now allows parties to appeal orders granting or denying motions to amend the complaint to assert punitive damage claims and they will discuss the significance of this rule change to litigants in the Florida courts.

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


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view events archives
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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KD Quarterly - Winter 2022 Edition

January 21, 2022

IN THIS ISSUE:
  • KD in the Community
  • Super Lawyers 2021
  • News | Annoucements
  • Spotlight on Brad McCormick
  • Presentations
  • Speaking Engagements
  • New Shareholders and Equity Partners
  • Recent Results: Appellate
  • Recent Results: Trials, Motions, Mediations
  • New Additions


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KD Quarterly - Winter / Spring 2021 Edition

April 5, 2021

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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view publications archives
Defense Verdict in Homeowner Claim!

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

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 and Jennifer L. Emerson

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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Subject-Matter Jurisdiction Gets Appraisal Award Rulings Kicked to the Curb

September 16, 2022  By:  Bretton C. Albrecht

Bretton C. Albrecht, of our Ft. Lauderdale office, recently prevailed in getting four trial court orders confirming appraisal awards in four related cases overturned. In State Farm Florida Insurance Company v. Roof Pros Storm Division, Inc. a/a/o Jesse Scott, 2022 WL 2374147 (Fla. 5th DCA July 1, 2022), four separate homeowners insured with State Farm filed claims for storm-related roof damage. Each homeowner assigned his/her/their policy rights over to Roof Pros, and in each claim, appraisal was sought after State Farm and Roof Pros could not agree on the amount of damages. The appraisal clause in each applicable State Farm policy stated that each party may select its own appraiser, the appraisers then must agree on an umpire, and if they cannot, then they may ask a judge to select the umpire. The parties could not agree as to an umpire, so petitions were filed for each claim in the lower courts, asking the courts to appoint an umpire in each matter. The lower courts ultimately entered final judgments confirming appraisal awards in each claim, and State Farm timely appealed. On appeal, State Farm took the position that the lowers courts lacked subject-matter jurisdiction to hear these cases as pleaded and to enter a final judgment because these actions did not seek damages, alleged no jurisdictional amount in controversy, and lacked the essential allegations to support a declaratory judgment or breach of contract action. The Fifth District Court of Appeal agreed, reversing the lower courts’ rulings. 
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You Snooze, You Lose: Dismissal Obtained for Plaintiff's Failure to Effectuate Timely Service

September 16, 2022  By:  Erika Cordovi

Erika Cordovi, of our Miami office, obtained an order of dismissal in a Personal Injury Protection (“PIP”) suit due to the plaintiff’s failure to effectuate timely service of process on our client. The plaintiff exceeded the 120-day service requirement by one week and failed to request an extension of time or show good cause for the delay. With case law supporting her argument, Erika convinced the court to dismiss the plaintiff’s action against our client. 
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Summary Judgment Granted for Insurer, Dismissing Suit and Compelling Appraisal

September 16, 2022  By:  Kara K. Cosse

Kara K. Cosse, of our Jacksonville office, prevailed on summary judgment in a first-party property damage dispute. The defendant-insurer invoked its right to appraisal prior to plaintiff filing suit. Once suit was filed, several motions were filed and argued, including a motion disputing the venue of the case, a motion pertaining to untimely service of process, and a motion requesting to stay the case pending a criminal investigation against the plaintiff. The plaintiff argued the insurer waived its right to appraisal by litigating the case and participating in these various motions. Kara argued, and the court agreed, that the insurer properly demanded appraisal and that the litigation the insurer had participated in to date was administrative in nature, and thus the insurer did not act inconsistently with its right to appraisal. 
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Arbitration Award for Insurer Obtained in Tropical Storm Gordon Claim

September 16, 2022  By:  Emily Huang

Emily Huang of our Ft. Myers office, helped our insurer-client obtain a binding arbitration award in its favor. The insureds filed a property damage claim allegedly arising from Tropical Storm Gordon; however, the insurer denied the claim because the damage appeared to have resulted from Hurricane Irma at a time prior to when the insureds owned the home. The arbitrator found that, based upon the evidence, the denial was proper. 
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Summary Judgment Granted in Untimely-Filed Hurricane Irma Claim.

September 16, 2022  By:  Nicole Lauren Wulwick

Nicole L. Wulwick, of our Miami office, prevailed on summary judgment in a late-notice Hurricane Irma claim. The plaintiffs-insureds admitted that they knew of roof damage as early as October of 2017, had it repaired, but never notified the defendant-insurer until nearly three years later. Additionally, the plaintiffs testified that they noticed moisture in the interior ceilings of several rooms in the home at least one year prior to reporting their claim. Both sides presented expert affidavits, but the court ultimately ruled in favor of the insurer, holding the loss was not covered as a matter of law. 
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Rules Are Rules: Court Grants Summary Judgment Due to Plaintiff's Violation of Assignment of Benefits Requirement

September 16, 2022  By:  Jonathan O. Aihie

Jonathan O. Aihie, of our Miami office, obtained a summary judgment in favor of our client in a first-party property case. The insured entered into an assignment of benefits (“AOB”) with a contractor, but the contractor failed to provide the signed AOB to the insurer within three days of its execution as required under section 627.7152(2)(a)3, Florida Statutes. Additionally, the contractor also violated subsection (9)(a) of the same statute by filing a premature notice of intent to litigate. The court held these violations invalidated the claim. 
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Insured Gets Caught Up in Contradictions, Costs Her the Case.

September 16, 2022  By:  William A. Sabinson

William A. Sabinson, of our West Palm Beach office, secured a summary judgment for our client, a property insurer, in a Hurricane Irma case. The insurer investigated the property damage loss, sent a reservation of rights letter, and paid for the damaged portion of the insured’s roof. The insurer requested she submit any estimates she received, but she forwarded nothing and, instead, sued. During her deposition, the insured testified she had no contact with anyone from the insurer during the handling of her claim. However, when the insurer moved for summary judgment, the insured submitted an affidavit arguing that the claims adjuster told her there was additional damage to her roof. Billy moved to have the affidavit stricken given that it contradicted the insured’s deposition testimony. The court agreed and ultimately granted summary judgment in favor of the insurer. 
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Rules Matter: Summary Judgment Granted Due to Procedural Problems with Plaintiffs' Affidavits

September 16, 2022  By:  Eli M. Marger

Eli M. Marger, of our Tampa office, obtained a summary judgment for our client in a case involving windstorm loss. Eli filed the motion with the court, and counsel for the insureds were late in submitting their response in opposition, which was accompanied by affidavits of the insureds and a general contractor. The court concluded the affidavits were untimely but still considered them. Eli argued that in addition to the affidavits being untimely, they were conclusory and provided no significant factual background, which made them insufficient under Florida law. The court agreed, striking the affidavits as untimely and legally insufficient, and granting summary judgment for the insurer. 
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Plaintiff's Strategy Backfires, Resulting in Victory for Defendant

September 16, 2022  By:  Martin P. Blaya

Martin P. Blaya, of our Miami office, with the assistance of KD’s Appellate and Coverage Practice Group, convinced a court to enforce a settlement previously entered into by the plaintiff. The plaintiff argued that the settlement was invalid for two reasons: (1) she had not yet been named the personal representative of her father’s estate when the settlement was entered into in her name on behalf of her father’s estate; and (2) she did not authorize her prior attorney to enter into the settlement agreement and, therefore, the prior attorney had no authority to settle the claim. Importantly, regarding this second argument, the plaintiff invoked attorney-client privilege during her deposition, with the court sustaining those objections, making it impossible to discover what exactly the plaintiff may or may not have authorized her prior attorney to do with respect to settling the claim. Fortunately, the plaintiff’s prior attorney was not so tight-lipped, and he testified that he had the plaintiff’s express authority to settle the claim. At the hearing on the motion to enforce settlement, Martin argued that, under Florida law, the powers of a personal representative relate back in time to validate acts made by the person prior to being officially appointed. And sealing the fate of the plaintiff, Martin lastly argued that because the plaintiff invoked her attorney-client privilege—preventing the discovery of information that went to the heart of this dispute—the court was left to rely solely on the testimony of the plaintiff’s prior attorney, which supported the defendant’s position. The court agreed and granted the defendant’s motion to enforce settlement. 
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Summary Judgment Granted for Insurer in First-Party Property Case

September 16, 2022  By:  Nicole Lauren Wulwick

Nicole L. Wulwick, of our Miami office, secured yet another summary judgment for an insurer in a first-party property suit. During the claim investigation, the insurer inadvertently issued payment for damage for which coverage was excluded in the policy. The insureds never cashed that check; rather, they sued the insurer, disputing the amount owed. Nicole argued on summary judgment that there was no coverage for the loss and that by not cashing the check or making any of the repairs for which the check was issued, the insureds did not detrimentally rely upon the payment as evidence of coverage; therefore, despite the inadvertent payment by the insurer, the insurer was not estopped from denying the claim. The court agreed and granted summary judgment for the insurer. 
 
The information provided about the law is not intended as legal advice. Although we go to great lengths to make sure our information is accurate and useful, we encourage and strongly recommend you consult an attorney to review and evaluate the particular circumstances of your situation. 
 

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Favorable Defense Verdict in a Rear-End Auto Accident Case

July 13, 2022

Congratulations to Kendra Therrell, Erin Johnston and Ben Carter on a favorable defense verdict on a rear-end auto (admitted liability) accident in Gainesville, Florida. Our team offered $100,000 before trial, Plaintiff’s demand was consistently $3,000,000 and they asked the jury for $8.4 million. The jury deliberated and came back with a $100,000 verdict, rejecting Plaintiff’s more than $300,000 in past medical damages including multiple injections, lumbar ablations, and a lumbar surgery.

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Cast Iron Pipe Case Defense Verdict

June 2, 2022  By:  Kara K. Cosse and Michael J. Carney

Kara Kennedy Cosse, of our Jacksonville office, and Michael Carney, of our Ft. Lauderdale office, obtained a defense verdict in a cast iron pipe trial against Mark Nation of Nation Law Firm. The insured filed a lawsuit alleging accidental resulting damage to his bathroom floor and connecting hallway from sewage that backed up out of a toilet due to deteriorated, collapsed, 52-year-old cast iron pipes. The insured claimed he was working on the date of loss and that his sister called him to come home from work to help clean up sewage on the floor. The carrier initially paid the resulting damage to the floor and hallway based on representations by the insured that the damages were accidental, but denied replacement of the pipes because they were deteriorated and specifically excluded in the policy. The insured sued the carrier, requested trenching of his home to replace the cast iron pipes.

Kara and Michael successfully argued to the jury that payment should never have been made in the first place, as the loss was not accidental based on the insured’s prior claim history and because a billboard was the impetus for the lawsuit, not a physical loss. The insured had four (4) prior claims that depicted the property’s general unkempt condition over a span of 10 years, and photographs of the unrelated claims depicted two (2) prior PVC plumbing re-routes in the kitchen and laundry room. The insured reported all four (4) prior claims immediately, and the claim in dispute was reported three (3) months late. Critically, the insured admitted he saw billboard advertisements for cast iron pipes prior to the loss and actually changed the date of loss on the stand when Michael confirmed with him that he was a government employee who would not have been working on November 22, 2018, as he swore to, because November 22, 2018 was Thanksgiving when federal employees do not work. Kara and Michael took the position that the insured knew or should have known that plumbing overflows were imminent at the property based on the prior PVC re-routes and that the insured should have expected losses like this to occur with the remaining cast iron pipe lines at the house. They also argued that the reason why the loss was not timely reported, like all of the other losses, was because the billboard advertisement was the impetus to the lawsuit, not an accidental loss on a date the insured recanted on the stand. The jury was out for just over an hour and came back with a complete defense verdict, and a proposal for settlement was filed more than two (2) years before trial, which should allow for recovery of defense fees and costs.



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