Our law clerk program is led by Jennifer Feld from the Tampa office, and Jennifer Remy-Estorino and Nicole Wulwick from the Miami office. Each year, our program leaders focus on recruiting a diverse, highly motivated group of law students with top academic credentials. This year's class is enrolled in top law schools throughout the State of Florida. Every participant will be paired with a mentor and given the opportunity to work alongside shareholders and associates to draft research assignments, contribute to trial preparation, observe depositions and attend mediations. The goal is to provide guidance and training that will help each student have a better understanding of the practice of law and the importance of providing clients excellent service. Successful summer clerks will be considered for associate positions upon graduation and bar admission.

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



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Effective immediately, the Florida Supreme Court recedes from Frye and adopts the Daubert amendment set forth in 90.702 as a procedural rule of evidence.

The Florida Supreme Court has issued a per curiam decision, In re: Amendments to the Florida Evidence Code, SC19-107 (May 23,2019) (Justices Canady, Polston, Lawson, Lagoa, and Muñiz, concurring), adopting the 2013 amendments to 90.702, Fla. Stat., which codified the Daubert standard for admissibility of expert testimony. The majority includes two of the three recently-appointed Justices. In explaining its decision, the Court declined to readdress the correctness of the recent opinion in DeLisle v. Crane Co., 258 So. 3d 1221 (Fla. 2018), in which a majority of the Court (Justices Quince, Pariente, Lewis, and Labarga) had determined that the Frye test previously adopted by the Court was the proper standard and held the 2013 amendments to 90.702 to be unconstitutional, essentially in violation of the Court’s exclusive rule-making authority. Justices Quince, Pariente, and Lewis have since retired from the Court. In effect, the new In re: Amendments decision seems to reject the constitutional deficiency found in DeLisle and implements once again the Daubert test by adopting the 2013 amendments to 90.702 and 90.704 “effective immediately.” (Full opinion available HERE). For more information, please contact us at info@kubickidraper.com.


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We are happy to announce Toni Turocy, of our Orlando office, has been selected as a Board Member for the Holocaust Memorial Resource & Education Center of Florida. Their Board of Directors represent a broad diversity of religions, interests, and backgrounds. The Holocaust Memorial Resource and Education Center of Florida is an organization dedicated to combating anti-Semitism, racism, and prejudice with the ultimate goal of developing a moral and just community through its extensive outreach of educational and cultural programs. We are proud of Toni’s commitment to the community and we look forward to supporting her new role.

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We are very pleased to announce Michael Carney has been selected as a recipient of the Miami-Dade County Public Schools Values Matter Miami Award. Mike was nominated as a valued partner by a Miami-Dade County Public School staff member and was selected as one of nine award recipients from over 200 community partner nominations. We are proud of Mike’s initiatives, and we look forward to continuing to support him and the Miami-Dade County Public School system. 

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For decades, the Florida Statute by which legal fees may be recovered, provided this right to owners, subcontractors, laborers and materialmen, but did not include contractors. Historically, contractors could only pursue fees where provided for in a bond or under certain circumstances. Effective October 1, 2019, the new version of Florida Statutes § 627.756(1) adds contractors, giving them the right to recover attorney fees incurred in asserting claims against a surety when a subcontractor defaults. For more information, please contact us at: construction@kubickidraper.com.



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Cassandra Smith, of our Jacksonville office, has served as the co-chair of Jean Ribault High School’s Future Lawyers Program for the last 3 years and has also served as a mentor for 4 years. Ribault High is a school in Jacksonville where many students face hardships, yet are among the best and brightest. The Future Lawyers Program matches each student with a local attorney or judge and at the end of the school year, students put on a mock trial. This year’s mock trial involved a wrongful death and went before the Honorable Brian Davis, US District Judge in the Middle District of Florida. The students did such an outstanding job, the outcome was a hung jury!


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From Hurricane Matthew in 2016, to Irma in 2017, and then Michael in 2018, there is no doubt the last few storm seasons have been rough on the hurricane-prone regions. The good news is, the first couple of early forecasts for the 2019 Hurricane Season predict lower chances of destructive storms. That said, those of us in areas prone to hurricanes know, it only takes one.

Start preparing before any threat is imminent.

• Build an emergency kit
• Know your zone so you know when to evacuate, if necessary
• Plan your evacuation route
• Take inventory of your personal property and review your insurance policies
• Take steps to protect your home and business

If you are an insurance adjuster, it is important to make sure you have met all of your CE requirements to ensure your license is in good standing and is active. If you are in need of Florida Adjuster CE credit(s) and would like to schedule a complimentary CE presentation at your office, please do not hesitate to contact us at info@kubickidraper.com.


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The Florida Senate passed SB122 with much aplomb. It will attempt to address what is popularly seen as a chance to curb abuse and give policy holders protections while hopefully keeping policy premiums affordable. It was Commissioner David Altmaier who said “OIR’s main focus is to work towards decreasing insurance costs for consumers living in Florida, while balancing the solvency needs of companies operating in Florida.”

Governor Ron DeSantis still needs to sign it into law but that is considered a foregone conclusion. The law is scheduled to take effect on July 1st, 2019.

The following are the highlights of the bill’s provisions:
1) States what an AOB agreement is and regulates its validity and requirements
2) Addresses fees, prohibiting some and alters policy provisions in managed repairs
3) Shifts the burden of proof to the assignee re: failure to undertake newly transferred pre-suit duties and must prove that the failure has not prejudiced the insurer to perform contractually
4) Under certain conditions an insurance carrier will be allowed to make policies prohibiting assignment
5) Big revisions to the state’s one way attorney fees statute which under certain circumstances even allows the insurer to obtain fees
6) Notice provisions were added requiring the service providers to give both the insurers and the policy holders 10 days prior written notice before filing suit.
Clearly, this is a serious attempt to advance the goal of decreasing insurance costs while balancing the solvency needs of the industry. Exciting times are ahead, and we look forward to helping our clients chart their path.

Should you have any questions regarding this new legislation or regarding any other insurance matters, please contact us at info@kubickidraper.com.

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“In it for the long run” best sums up Ken Oliver’s career as an Attorney and Equity Partner of the firm. Ken holds the distinction as the longest, continuously tenured employee at the firm, having started over thirty-four years ago. Ken started with the firm immediately out of law school when he was hired by Betsy Gallagher and Gene Kubicki.

Ken obtained his Juris Doctor at Nova Southeastern University Shepard Broad College of Law, and was a member of the law school’s first class to graduate after full accreditation. While in law school, Ken was able to clerk at a law firm with fellow Equity Partner, Earleen Cote, starting a more than thirty year long friendship. When Ken started at Kubicki Draper, he was the 18th attorney in the firm, when it only had one office in Miami. In 1991, as Kubicki Draper continued to grow, Ken was given the opportunity to help the firm expand by opening the Fort Lauderdale office. Eleven years later, Ken went on to open the Fort Myers/Naples office, where he continues to be the Managing Partner.

Ken has been a part of the firm expanding over the years from one office with less than twenty attorneys, to a firm with thirteen offices and approaching 150 attorneys. While Ken enjoys practicing in the areas of bodily injury liability, premises liability, professional negligence, catastrophic/high exposure losses, and bad faith prevention matters, he also enjoys training claims professionals and having the flexibility to help mentor and train the firm’s next generation of trial attorneys.

When he is not practicing law or helping run the firm as an Equity Partner, Ken enjoys spending time with his wife, Josie, his two daughters, and the grandchildren he and Josie share.

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

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

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

The great program we have lined up is as follows:

Playing Roulette with Policy Conditions

Speakers: Valerie Dondero and William Sabinson

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

 

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

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

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

 

CRAPS - Civil Remedy Anatomy, Protocols, and Solutions

Speakers: Bretton Albrecht and Stefanie Capps

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

 

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

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

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

 

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

Speakers: Jonathan Aihie, Jessica Murray and Stephanie Seligman

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

 

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

Speakers: Anthony Atala, Sarah Goldberg and Katherine Moon

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

Space is limited, so register today!

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

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

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Alexandra Paez, Rebecca Brock, and Laurie Adams participated at the Palm Beach County Bar Association’s Bench Bar Conference on February 22nd.

Our team participated in two sessions at this year’s conference focusing on “Breaking Barriers and Sharing Solutions.”

Alexandra participated as a co-chair, and Rebecca as moderator, for a session on hot topics in personal injury. The esteemed panel for the session included Judge Rowe, Judge Nutt, Judge Keyser, Judge Gillen, Judge Gross, and Judge Artau. Together they covered everything from pre-trial and expert discovery to pre-trial disclosures, and voir dire.

Alexandra also co-chaired a panel Laurie was a part of along with Sean Dominick and Judge Sasser. They discussed bad faith and the recent Harvey v. GEICO opinion, as well as first-party property considerations, and ethical considerations, dilatory tactics, and compliance with local rules.

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Charles Watkins of our Miami office proudly awarded $10,900 in scholarship funds to worthy students during Pioneer Community Church’s annual celebration honoring graduates. As the Chair of the Kathleen B. Watkins Scholarship Fund, every year, Charles continues his mother’s legacy and awards qualified students funds to assist them in obtaining a college degree. Charles, who is also an Equity Partner and the Chief Diversity Officer of our firm, strongly believes in giving back to the communities in which we live and work, and this event is just one of the many ways in which he commits to do so.


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We are proud to have once again sponsored and participated in Florida Insurance Fraud Education Committee’s (FIFEC) Annual Conference in Orlando, Florida. Several of our attorneys presented alongside insurance industry professionals and law enforcement members in an effort to continue the ongoing fight against all forms of insurance fraud. Our team’s topics were as follows:


If you have any questions or would like more information about any of the topics, please contact one of our presenters above.

We look forward to participating in and hopefully seeing you at this great event next year!



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We are pleased to once again sponsor CLM’s Annual Conference. The conference is set for March 14-16, 2018 in Houston, TX and Charles Watkins and Caryn Bellus from our Miami office will be in attendance.

Charles is slated to present on March 15 with Jim Everett of Everett Cash Mutual Insurance Group and James Martin of Carfax. They will be discussing issues attendant to the overall management of auto total loss claims in catastrophic situations. Issues to be discussed include gaining knowledge of exposure pre-CAT, claim resolution options, referral flags for SIU, and the staging of SIU to handle them. The panel will also address legal issues including fair claim handling practices, Diminished Value on non total losses, fraud investigation assistance, and prosecution including fraud rings. Participants are encouraged to offer ideas, solutions, and examples of utilizing new technology and data to solve issues relative to these areas.

For more information, please visit: 2018 CLM Annual Conference.



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We proudly support and celebrate the success and contributions of women in the construction industry. Michelle Krone, of our Ft. Myers office, took part in celebrating Women in Construction (WIC) Week by presenting a session on behalf of the National Association of Women In Construction. She offered guests a legal perspective on issues related to the construction industry.



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Harold Saul and Marsha Moses, of our Tampa office, participated in the Hillsborough County Bar Association’s Diversity Networking event at the Chester H. Ferguson Law Center. The event helps connect minority law students with attorneys, judges and members of local legal organizations in a casual, friendly and low-pressure environment. Harold and Marsha were able to meet several eager law students, many local judges, and special guest Florida Supreme Court Justice C. Alan Lawson. Kubicki Draper is proud to be a part of this great event centered around diversity.




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Miami shareholders Valerie Dondero and Nicole Wulwick joined several Miami-Dade County Judges and young female attorneys at the Florida Association of Women Lawyers Trial Skills Advocacy workshop. During this two day event Nicole sharpened her trial skills working with several judges on opening statements, cross examination of lay and expert witnesses and closing arguments. Valerie was invited to join the Judges panel and provided her experience and perspectives on trying cases, developing the theme to the trial and effective closing arguments. The workshop was a huge success and both Valerie and Nicole were highly complimented by our Miami judiciary.


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IN THIS ISSUE:

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

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IN THIS ISSUE: 

• KD in the Community
• Reservation for Exploitation: Confronting Human Trafficking in the Hospitality Industry
• A New Mother's Guide to Pumping During a Jury Trial
• Living Through the Storm
• Appellate Results
• Spotlight on: Valerie Dondero
• Trials, Motions, Mediations, Results
• 2019 KD Best Lawyers
• Presentations & Speaking Engagements
• News & Annoucements

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IN THIS ISSUE: 

• Spotlight on: Michael C. Clarke
• KD in the Community
• Allocation of the Burden of Proof at Trial Under a Special Form Homeowners Insurance Policy
• Presentations & Speaking Engagements
• KD Super Lawyers 2018
• Recent Results: Appellate, Trials, Motions, Mediations
• News & Annoucements
• New Additions
• Annoucements

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Mario Errico, of the Jacksonville office, received a defense verdict after a very contentious 3 day trial. The young 26 year old Plaintiff was claiming neck, back, and knee pain related to the 2016 rear-end car accident. Plaintiff had accumulated around $16,000.00 of medical treatment over the last two years, and was seeking significant amounts of money for many years of future pain management until her own doctor testified that he would only give her a few years of additional conservative treatment. During closing argument, Plaintiff’s counsel asked for a $150,000.00 verdict.

Mario had a filed a Proposal For Settlement for $12,500.00 against Plaintiff’s Proposal For Settlement for $20,000.00. The jury ultimately awarded $15,000.00, which after setoffs triggered the defense’s Proposal for Settlement.

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Nicole Wulwick, of the Miami office, had an excellent result in a first party property case involving a denied drain line backup claim. Plaintiffs’ damages estimate, not including attorney’s fees, was $200,000.00. Nicole immediately deposed the Plaintiffs and the tenant of the property, to eventually file a Motion for Summary Judgment. The Motion was set for hearing on a Monday morning, and late the Friday evening before the hearing, Plaintiffs accepted our $2,000.00 settlement offer.
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Bretton Albrecht, Barbara Fox and Caryn Bellus, of the Miami office, obtained a written order providing that if an insurer pays benefits pursuant to a CRN, it is not a confession of judgment entitling plaintiff to fees. After a hearing on plaintiff’s motion for summary judgment argued by Bretton, the court found that the tactic of filing suit and a CRN and waiting for the insurer to pay benefits before effectuating service is a “gotcha” tactic to which the confession of judgment rule does not apply.
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Sean Xenakis and Maegan Bridwell, of the Tampa office, received a very favorable settlement after four very tenacious days in trial.

The case involved a large amount of pain management and a spine surgery. The past medical bills were almost $130,000.00. The policy limits were rejected, and there was a proposal for settlement which was so low, the defendant would have owed attorneys fees because the amount which would have to be conceded was enough to trigger the fees.

However, due to Maegan’s handling of the before and after witnesses, as well as Sean’s skilled cross examination of the plaintiff, her case began to significantly erode. The claims by the plaintiff, her sister and mom (the two before and after witnesses) that her life was ruined and she was basically house ridden were revealed to be grossly exaggerated based on admissions of the plaintiff during Sean’s cross in part due to some social media posts. The plaintiff even admitted that her sister’s testimony may have gone too far.

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Kenneth Oliver and Angela Agostino, of the Fort Myers office, obtained a defense verdict in Collier County on an admitted liability auto case. The plaintiff mother had left wrist surgery with over $65,000.00 in medical bills, the 22 year old plaintiff son had cervical and lumbar bulging discs with over $22,000.00 in medical bills, and the plaintiff father brought a loss of consortium claim. Since the accident, the defendant had passed away, unrelated to the auto accident. Ken and Angela were able to locate Facebook posts from the family business, UPS employment records from the plaintiff son, and inconsistencies in the Plaintiffs’ testimony and medical records during trial.

After a three day trial, the jury came back with a verdict less than 25% of the proposals for settlement filed, awarding only past medical expenses. After set-offs and collateral sources, the net verdict was less than the attorney’s fees and costs exposure created by the verdict.

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Earleen Cote, of the Ft. Lauderdale office, obtained a defense verdict after a three-day trial in a Broward coverage case. Plaintiff was involved in a collision while driving a recently financed vehicle she claimed was added to her existing insurance policy at the time the vehicle was purchased. Plaintiff sued the carrier for the full value of the vehicle in addition to the amount financed, which was double what the car was actually worth. Neither the carrier, nor the dealership, had any record of the car ever being added to her existing policy, which covered two older vehicles. However, Plaintiff was able to survive summary judgment by arguing the car was added by a carrier representative via telephone while at the dealership. After granting partial summary judgment in favor of the carrier on Plaintiff’s count for reformation, the Judge allowed the remaining claims of breach of contract and declaratory judgment to go to a jury. A defense verdict was returned after about 20 minutes of deliberation.
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Eric Tourian, of the Orlando office, won a Motion for Final Summary judgment in a PIP matter, arguing that a demand letter was defective. Since it was defective, Plaintiff failed to comply with a condition precedent, and therefore Plaintiff had no standing. After an hour and a half long hearing, the Judge granted Eric’s motion, and granted Summary Judgment for the carrier.
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Nicole Wulwick, of the Miami office, obtained Summary Judgment in a denied roof leak claim, which Nicole litigated for two years. The facts were not in the carrier’s favor, but Plaintiffs’ expert Affidavit failed to create issues of material fact and Nicole was ultimately able to prevail. Due to a Proposal for Settlement filed very early in the litigation, Nicole is now seeking both costs and attorney’s fees.
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Michael Balducci and Lillian Sharpe, of the West Palm Beach office, obtained an Order of Dismissal for Fraud on the Court in a first party property case. Mike argued a motion drafted by Lillian arguing that dismissal was proper due to the insured lying about not having any prior claims or damage to her home (she had a claim against another carrier for similar damage at the home four years before this lawsuit). The Plaintiff denied prior claims in her application and in her EUO, only to try and fess up about it in her deposition, when she said she “forgot” about it, while still denying she had ever filed a lawsuit. Meanwhile, she had filed a suit against another carrier for her prior loss two months before the deposition, which was assigned to the same trial judge as this claim. Despite requests for an evidentiary hearing, the judge determined that Plaintiff had more than enough opportunities to be truthful, and ruled on Mike and Lillian’s motion.
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Maegan Bridwell with assistance of Sean Xenakis, of the Tampa office, obtained a very favorable verdict after a four day jury trial.

Due to an expired Proposal For Settlement, and two very experienced Plaintiffs’ attorneys, there was a significant risk of exposure to attorney fees and noneconomic damages due to the permanent injuries suffered. The two Plaintiff attorneys attended everything in light of a Proposal For Settlement served two years ago that was just slightly more than the past medicals at that time as they were armed with injuries involving objective fractures that caused an extended hospital stay following intake at the ER on the night of the incident. Given the nature of the objective fractures, permanency had to be conceded.

The case had many factual disputes and claims of what happened, essentially becoming a trial within a trial. Maegan was forced to juggle and simplify for the various factual disputes to the jury, as well as new matters that arose during trial due to the strategy of Opposing Counsel, such as Opposing Counsel raising an issue of criminal prosecution for perjury against the client in light of his trial testimony.

Notwithstanding these many issues, Maegan walked the jury through her well organized opening so they had a more clear picture of the issues requiring their attention and the inconsistency of the alleged facts/evidence. From there, she did her best to rehabilitate our client to clean up the credibility issues he created by his direct testimony. Then, she followed up with a three-hour cross-examination of the Plaintiff over two days, which was a monumental task due to the “street smarts” of the Plaintiff; her constantly changing testimony; and her volunteering of random, non-related information into her testimony to distract the jury Maegan remained polite, respectful, and professional during the extended impeachment process so as to not offend our jury. Through closing, Maegan took the jury on a journey of the actual relevant issues to be determined in the case and the disputed testimony/evidence allegedly supporting same.

After four days, the jury had what they needed to find the Plaintiff 49% comparatively negligent and return a verdict that was a fraction of the more than $300,000.00 requested by Plaintiff’s counsel in his closing. Maegan’s hard work will result in a recovery to the Plaintiff amounting to half of her past medicals.

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