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KD Quarterly - 2023 Summer Edition

June 30, 2023

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KD Quarterly - Summer 2022 Edition

September 16, 2022

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On the Hook for a Prevailing Party's Attorney's Fees? Here's What to Know About Contingency Fee Multipliers

July 18, 2022

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What to Cover When Coverage Issues Arise: 5 Tips for Determining If You Need An EUO and, If So, What Questions to Ask

July 14, 2022

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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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Miami
Key West
Ft. Lauderdale
West Palm Beach
Tampa
Orlando
Ocala
Jacksonville
Pensacola
Tallahassee
Ft. Myers
Mobile

Our Firm

our hi(story)

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

ourattorneys

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

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ourDIVERSITY

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

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ourPractices

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

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ourresults

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

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ourreach

With a dozen offices throughout the State of Florida and other key points in the southern 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 DCA Finds Daubert Requires Trial Courts Act as "Gatekeepers," and Not Accepting "Guestimated" Expert Opinions Lacking Demonstrated Reliability

September 25, 2023

In Universal Property & Casualty Insurance Co. v. Navlen, 4D2022-1590, the Fourth District reversed the trial court’s order denying Universal’s motion to strike the insureds’ expert witness and remanded for a new trial, holding that the expert’s reliance on experience and personal knowledge to form his opinion didn’t pass muster under the Daubert standard codified by Section 90.702, Florida Statutes. The case arose out of the insureds’ claim for wind damage to their roof, which Universal concluded fell below the policy deductible. Before trial, Universal moved to exclude the insured’s expert  he testified at deposition that he did not inspect the insured’s roof before it was replaced, formed opinions based on inspecting neighboring roofs, took no position about the percentage of the roof that was damaged, relied on wind speed measurements taken 17 miles from the property, based his opinion on “Benchmark” data that was not included in his report, and could not rule out other causes of the roof damage. The appellate court concluded the expert’s opinion didn’t satisfy Daubert because the insureds did not offer any independent corroboration that the “Benchmark” data, which the expert claimed he used “all the time,” was sufficiently reliable. Similarly, the court faulted the expert for failing to conduct any calculation or use any other method to support his opinion that more than 25% of the roof was damaged, noting that he merely “guestimated” based on reviewing photos. The opinion reinforces the adage that while an expert may rely on experience and personal knowledge in forming an opinion, they must establish how the experience led to their conclusion, why the experience is a sufficient basis for the opinion, and how the experience was reliably applied to the facts. 

Read the full opinion here. 
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Fourth DCA Holds Georgia Auto Policy's "Out of State Coverage" Provision Does Not Provide Non-Resident With Florida PIP Coverage

September 25, 2023

In T.I.O. Medical Intervention, LLC, a/a/o Mary Faison v. Liberty Mutual Fire Insurance Co., 4D2022-2130, the Fourth District affirmed the county court’s summary judgment for the insurer, holding that the insured’s Georgia auto policy did not provide Florida PIP coverage to a nonresident involved in an accident in the state. The policy stated it would provide at least the minimum amounts and types of coverage in other states with compulsory insurance laws requiring a nonresident to maintain insurance “whenever” the nonresident uses a vehicle in that state. In turn, Florida’s PIP statute requires nonresident owners or registrants to maintain PIP coverage for vehicles that have been physically present in the state for more than 90 of the preceding 365 days. The appellate court first noted that there was no evidence the insured was the owner of the vehicle, was driving the vehicle at the time of the accident, or that the vehicle had been in Florida for more than 90 of the preceding 365 days. Thus, Florida law did not require the insured to maintain PIP coverage. And, even if the evidence showed Florida’s PIP requirement was triggered, the policy still would not provide coverage, because Florida law only requires a nonresident to maintain PIP coverage under certain circumstances, not “whenever” they use a vehicle in the state. As is often the case, policy language is paramount when analyzing what coverage is available. 

Read the full opiion here. 
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Homeowner's FDUTPA Claim Fails for Lack of Evidence of Actual Damages

September 25, 2023

In Stuart Roofing, Inc. v. Thomas, 4D2022-2580, the Fourth District reversed and remanded for entry of directed verdict in favor of the roofer on the homeowner’s claim under the Florida Deceptive and Unfair Trade Practices Act because the insured failed to establish the amount of actual damages caused by the roofer’s work, which is a necessary element of a FDUTPA claim. The homeowner hired Stuart Roofing to replace his roof, but refused to pay the final invoice because the roofer used subpar materials contrary to the parties’ contract. The roofer sued for breach of contract and the homeowner counterclaimed for violation of FDUTPA. After the jury awarded damages on the FDUTPA claim, the roofer moved for directed verdict arguing the homeowner failed to present evidence of his actual damages. The trial court denied the motion but the Fourth District reversed, holding actual damages under FDUTPA are the difference in market values of the product or service that was delivered versus what was promised. While the homeowner established what the roofer promised, he failed to establish the value of what was delivered, instead producing evidence of amounts paid for repairs. The court concluded that such amounts represent consequential damages, which are not recoverable under FDUTPA, and reversed the judgment for the homeowner on the FDUTPA claim.

Read the full opinion here. 
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A Dispute Regarding Additional Damage Arising From a Covered Loss is Ripe for Appraisal

September 20, 2023

In Heritage Property & Casualty Insurance Company v. Wellington Place HOA, Inc., No. 4D2022-2749 (Fla. 4th DCA September 13, 2023), the Insureds claimed roof damage following Hurricane Irma. The Insurer provided coverage for the loss but did not settle or close the claim. The Insureds later sought payment for additional roof damage and damage to windows and doors. Following the Insurer’s failure to settle the claim, the Insureds filed suit and the trial court granted the Insureds’ motion to stay litigation and compel appraisal. On appeal, the Insurer argued that appraisal is not ripe, as the subsequently reported damage constituted a re-opened claim or supplemental claim for which coverage had yet to be determined. In affirming the trial court’s order, the Fourth DCA held that absent policy language requiring further coverage determinations, where an insurer admits a loss is covered and proceeds to hold the claim open for further adjustment, a dispute regarding additional or supplemental damage under the claim is one concerning the amount of loss which is ripe for appraisal. 

Read the full opinion here. 
 
 

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General Allegations of Waiver of Conditions Precedent Must be Addressed in a Motion to Dismiss

September 19, 2023

In Haratz, DDS, P.A. v. Dental Team of Atlantis, LLC, No. 4D2022-3228 (Fla. 4th DCA September 13, 2023), the Fourth District reversed the trial court’s order of dismissal with prejudice, holding that where a complaint generally alleges that all conditions precedent to bringing suit have been satisfied by the plaintiff or waived by the defendant, dismissal is improper if the defendant fails to refute the specific allegation in a motion to dismiss. In the underlying action, the trial court erred in granting dismissal, as factual issues regarding Plaintiff/Appellant’s compliance with conditions precedent remained due to the Appellee/Defendant’s failure to address the complaint’s waiver allegations in its motion to dismiss. Read the entire opinion here.
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Kubicki Draper has been certified as Age-Friendly!

August 16, 2023

We are honored to be recognized as a Certified Age-Friendly Employer by the Age-Friendly Institute -- the nation’s only certification program that identifies organizations committed to being the best places to work for employees aged 50+.

As outlined by the Age-Friendly Institute, we are committed to: valuing employees based on proficiency, qualifications and contribution; maintaining policies, practices and programs supporting people age 50+; valuing employee knowledge, maturity, reliability and productivity and offering meaningful employment, development opportunities and competitive pay and benefits for employees 50+.

To learn more about available opportunities at KD, visit: www.kubickidraper.com/careers

To learn more about the Age-Friendly Institute, visit: https://institute.agefriendly.org/initiatives/certified-age-friendly-employer-program/
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4th DCA Finds Engineering Report Not Covered Under Policy's Loss Settlement Provision

July 3, 2023

In People’s Trust Ins Co v. Kidwell Group LLC, Case No. 4D22-1314 (Fla. 4th DCA Jun. 28, 2023), involving a hurricane damaged roof, the homeowner obtained an engineering report on cause and extent of damages in exchange for an assignment of benefits. After the insurer admitted a covered loss and settled, the homeowner repaired his roof and the report was not used in the project. The insurer then refused to pay the assignee’s invoice for the report, giving rise to the case. 

On appeal, the Fourth DCA reversed, finding that the insurer’s motion for directed verdict should have been granted. It found that evidence presented at jury trial demonstrated that the engineering report was not a “cost to repair or replace” the roof under the policy’s loss settlement provision. Further, reversal was warranted based on erroneous jury instructions and verdict form. To read full opinion, click HERE. 
 

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4th DCA Finds Homeowners Presented No Evidence Ceiling Collapse Was Caused By Named Peril

June 30, 2023

In Universal Property & Casualty Ins. Co. v. Caboverde, Case No. 4D22-1059 (Fla. 4th DCA June 28, 2023), the Fourth DCA reversed final judgment for homeowners on a ceiling collapse claim after jury trial where they failed to prove collapse was caused by a named peril under the policy. Specifically, the homeowners presented no evidence at trial that hidden and unknown decay or insect damage existed at the time of the collapse and thus could not have proven it caused the collapse. Rather, the only witness who testified about termite damage, their contractor expert, did not inspect the home until 5 years after the loss and did not know how long termites were there. The Fourth DCA remanded for final judgment in the insurer’s favor. To read full opinion, click here. 
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4th DCA Reverses Summary Judgment Finding Affidavit of Insurer's Corporate Representative Deficient

June 27, 2023

In Savoy v. American Platinum Property & Casualty Ins., 2023 WL 4095772 (Fla. 4th DCA Jun. 21, 2023), the Fourth DCA reversed summary judgment for the insurer in a homeowners’ breach of policy case, finding the trial court erred in relying on a deficient affidavit. The insurer relied upon its corporate representative’s affidavit, which attached communications between the field adjuster, public adjuster and homeowners. However, the affidavit did not indicate any basis for the corporate representative’s knowledge of statements about the claim or his employment. 

On appeal, the Fourth DCA reiterated that corporate representative affidavits supporting summary judgment are not excepted from the personal knowledge requirement. The affiant provided no basis for personal knowledge or competency as he stated he reviewed the insurer’s file, but did not claim knowledge of its recordkeeping practices and merely restated elements of the business records exemption in a conclusory manner. The Fourth DCA held that the affidavit and attached documents should have been disregarded by the trial court as it failed to satisfy the requirements to be used to support a motion for summary judgment. Read more HERE. 
 

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2023 Florida Super Lawyers and Rising Stars

June 26, 2023

We are pleased to congratulate this year’s Florida Super Lawyers and Rising Stars! 
 
Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis and to be selected, peer nominations and evaluations are reviewed and combined with independent research. To learn more, visit: https://www.superlawyers.com/
 

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Three Pillars of Workers' Compensation Defense: Investigate, Document, and Consult

June 22, 2023

1. Investigate: Remember to send the "120-day" letter to the injured worker if you need more time to investigate.
 
2. Document: Documentation is key in defending the position that the authorized treatment was provided in a reasonable timely manner.
 
3. Consult: If questioning medical necessity and/or causal relationship of the recommended medical treatment from an authorized provider, speak with the authorized provider regarding the basis of the recommendation to assist your decision-making regarding that specific treatment.
 
Questions about a claim you are handling? Contact our experienced workers’ compensation team for assistance: workerscomp@kubickidraper.com.

 
 

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First DCA Holds Right to Appraisal Waived by Participating in Litigation

June 15, 2023

In Silvia v. Castle Key Insurance Company, No.: 1D21-3889 (Fla. 1st DCA June 14, 2023), the trial court granted the insurer’s motion to invoke appraisal and abate litigation finding that the insurer’s conduct did not result in a waiver of its right to invoke appraisal. The First DCA reversed, holding that the insurer did not invoke the right to appraisal at the first opportunity. Instead, the insurer actively participated in litigation, which waived its right to appraisal. To read full opinion, click HERE. 
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Sixth DCA Compels Appraisal in Auto Glass Case

June 14, 2023

In First Acceptance Insurance Company, Inc. v. At Home Auto Glass, LLC a/a/o Petra James, Case No. 6D23-1192, 2023 WL 3910577 (6th DCA June 9, 2023), the Sixth DCA reversed the denial of an insurer’s motion to compel appraisal in an auto glass case. Following an assignment of benefits, At Home Auto Glass, LLC brought suit against First Acceptance Insurance Company after it issued payment based on prevailing competitive price. The insurer invoked the policy’s appraisal clause. However, agreeing with At Home’s interpretation of the terms “loss” and “amount of loss” as limited to physical damage, the trial court denied the insurer’s motion to compel appraisal.
 
The Sixth DCA found that At Home’s interpretation of the term “amount of loss” as limited to extent of physical damage was unreasonable. Agreeing with the Fifth DCA in Mendota Ins. Co. v. At Home Auto Glass, LLC, 348 So. 3d 641 (Fla. 5th DCA 2022), the court held that determination of “the amount of loss” necessarily includes both the extent of covered damage and the monetary amount necessary to repair or replace the damaged property. See full opinion HERE. 
 

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New Decision Regarding Assignment of Benefits

June 13, 2023

In Salyer v. Tower Hill Ins. Co. and Mason Dixon Contracting, Inc., No. 5D22-345 (Fla. 5th DCA June 2, 2023), the trial court entered summary judgment against an insured finding that the insured surrendered standing to sue her insurer for breach of contract by signing an assignment of benefits to the contractor for services rendered by the contractor. The Fifth DCA reversed holding that because the assignment of benefits was tethered to the work that the contractor was to perform—and the contractor performed no work—the insured retained standing to seek the enforcement of her insurance policy. To read more, please click the link below.
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Jonathan Aihie Selected for Inclusion in NBL's Top 40 Under 40 List!

June 13, 2023

Congratulations to Jonathan Aihie, from our Miami office, for being selected for inclusion in the National Black Lawyers, Top 40 Under 40 attorney list. This is an invitation-only organization comprised of attorneys recognized for their superior qualifications, legal results and professional leadership. Each year, only 40 attorneys from each state are selected for inclusion. To learn more, visit: http://www.nbltop100.org/.


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KD Welcomes 2023's Summer Law Clerks!

June 13, 2023

Please join us in welcoming our 2023 summer law clerks! 
 
The law clerk program is led by Jennifer Remy-Estorino and Nicole Wulwick from our Miami office, and Maegan Bridwell from our Tampa office. They focus on recruiting highly-motivated law students with top academic credentials to be paired with a mentor who provides opportunities for hands-on experiences alongside shareholders and associates. The program’s goal is to empower students to develop skills that will be critical in transitioning from the classroom to the courtroom. The experiences they receive will serve as a cornerstone to their career, hopefully here with the KD family.
 
Successful summer clerks are considered for associate positions upon graduation and bar admission. For more information about our program, please contact careers@kubickidraper.com.
 
Pictured below from left to right, we welcome: Ylena Zamora-Vargas, Chloe Buikus, Alexia Planos, Reginald Merilus, Alexa Ravencroft, Blake Paradise, Michael Del Duca, Amanda Souto, James White, Matthew Carbone, Connor Frontera, Sierra Luther, Emily Ramirez, Jen Deters, Caleb Liberman, and John Shirley.


 

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KD Celebrates National Caribbean American Heritage Month

June 12, 2023

The strength of our firm and our country is rooted in our diversity.  
 
Generation after generation of immigrants have helped build our country, including millions of Caribbean Americans who have contributed vibrant cultures, traditions, languages, and values. 
 
In recognition of National Caribbean American Heritage Month, we honor our many Caribbean American team members and the countless ways Caribbean Americans have added to our society. Together, we continue to shape our future.


 

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KD Attends MDFAWL 43rd Annual Installation & Award Reception

June 9, 2023

Karenny Montan, Nicole Wulwick, Samantha Joseph, Caryn Bellus, and Ana Martino, recently attended the Miami Dade Florida Association of Women Lawyers’ (MDFAWL) 43rd Annual Installation & Awards Reception. The event celebrated women in the field who have paved the way and was attended by over 300 lawyers from South Florida and 31 judges. 
 
To learn more about MDFAWL, please visit: https://www.mdfawl.org/


 

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2023 September Webinars

August 16, 2023

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

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

Presented By: KD's Construction Practice Group

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

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

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


Defending Construction Cases and the Possibility of Early Resolution

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

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

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

June 27, 2023

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

Florida 4-Hour Law and Ethics Update

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

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

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

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

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

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Join us for our CE Webinar in June

June 5, 2023

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

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

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

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

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

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

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KD Sponsors MDFAWL

May 22, 2023

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

 

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2023 June Webinars

May 5, 2023

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

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

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

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

Florida 4-Hour Law and Ethics Update

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

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

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

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

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

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KD to Present at FIFEC Conference 2023

April 14, 2023

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



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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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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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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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