Highlights:

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

Requirements:

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

Full bill available below.

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

Highlights:

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

Full case information available below.

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Arizone & Simon v. Homeowners Choice Prop. & Cas. Ins. Co., 2D18-1116 (2d DCA Mar. 17, 2021)

What’s This Case About

• Action filed by one Plaintiff in March of 2016
• Plaintiff adds wife a few months later
• Insurer serves each Plaintiff with a PFS 11 days after Plaintiff’s wife is added
• Jury verdict awards insurer fees and costs against both plaintiffs
• Plaintiffs appeal and contend PFS violation
• Court sided with Plaintiffs

Bottom Line:

Can’t file a PFS on a new Plaintiff until 90 days have past

Full case information available below.

If you have any questions about how this may affect any of your claims, please do not hesitate to contact us at info@kubickidraper.com.





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In state court, a declaration in support of summary judgment may not be equal to an affidavit.

The Third District recently held in King v. Zaslavskiy, 3D19-1921 (Fla. 3d DCA March 3, 2021), that while a sworn declaration is authorized and can create a genuine issue of material fact under the federal summary judgment rules, it was not clear whether a declaration instead of an affidavit was similarly permissible under Florida’s summary judgment rules. Nevertheless, a motion for continuance to correct the technical differences between a declaration and an affidavit should have been granted prior to entering summary judgment for the opposing party.  Full case information available below.


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Fourth DCA Invalidates CRN for Lack of Specificity in Stating What Insurer Allegedly Did Wrong

Picture this: an insurer receives a civil remedy notice (“CRN”) from its insured alleging bad faith claim handling.  In an attempt to resolve the matter, the insurer reviews the CRN but notices that the insured has referenced 35 statutory provisions, and rather than listing any specific policy language or provision has instead referenced nearly the entire policy.  In other words, the insured provided no specifics and listed everything but the kitchen sink.  Where should the insurer begin when responding to the CRN? 

In Julien v. United Property & Casualty Insurance Company, No. 4D19-2763 (Fla. 4th DCA Mar. 3, 2021), the Fourth District Court of Appeal determined that such failure by the insured to “state with specificity” the applicable statutes and policy language that the insurer allegedly violated renders the CRN defective as the insured failed to substantially comply with the specificity standard of section 624.155, Fla. Stat.  The court also rejected the insured’s argument that it did not need to rule on the sufficiency of the CRN since the Department of Financial Services, who has the authority to return deficient CRNs, did not return this particular CRN and therefore must have concluded it was sufficient.  The court explained that the Department “may” return a deficient CRN but is not required to, and the court “may not defer to an administrative agency’s interpretation” but rather must decide the issue itself.  The court, withdrawing its September 23, 2020 opinion and issuing this new opinion in its place, affirmed the trial court’s dismissal with prejudice of this action due to the insured’s defective CRN. 

The moral to the story: catch-all CRNs are defective; specificity matters! See full case below.

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March is designated as Women’s History Month corresponding with International Women’s Day on March 8. With over 76% of our team made up of women from staff to leadership, it is evident how much we value fostering an environment of equal opportunity. In this spirit, today and every day, we celebrate the contributions women have made and continue to make in the workplace, in society and in history.

In recognition of this year’s women’s history theme which continues from 2020: “Valiant Women of the Vote: Refusing to Be Silenced,” we salute the many strong, fearless suffrage pioneers. Women like Susan B. Anthony, Elizabeth Cady Stanton, Alice Paul, Frances E.W. Harper, Lucy Stone and Ida B. Wells-Barnett, stood up, spoke out and sacrificed for equality. We also recognize some of the brave men who supported them and fought alongside them like Thomas Paine, Daniel Anthony (Susan B. Anthony’s father), George W. Julian and Frederick Douglass – reminding us that together, we can bring about change and make the world a better place.

Please join us in celebrating the stories and achievements of the many incredible women around us and telling them how much they mean.






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Interesting facts:

As a child, Muhammad Ali was refused an autograph by his boxing idol, Sugar Ray Robinson. When Ali became a prizefighter, he vowed to never to deny an autograph request, which he honored throughout his career.
 

Before Wally Amos became famous for his "Famous Amos" chocolate chip cookies, he was a talent agent at the William Morris Agency, where he worked with the likes of The Supremes and Simon & Garfunkel.

Martin Luther King Jr. was assassinated on friend Maya Angelou's birthday, on April 4, 1968. Angelou stopped celebrating her birthday for years afterward, and sent flowers to King's widow, Coretta Scott King, for more than 30 years, until Coretta's death in 2006.

Louis Armstrong learned how to play the cornet while living at the Colored Waif's Home for Boys.

Scientist and mathematician Benjamin Banneker is credited with helping to design the blueprints for Washington, D.C.

Before he was a renowned artist, Romare Bearden was also a talented baseball player. He was recruited by the Philadelphia Athletics on the pretext that he would agree to pass as white. He turned down the offer, instead choosing to work on his art.

In 1938, first lady Eleanor Roosevelt challenged the segregation rules at the Southern Conference on Human Welfare in Birmingham, Alabama, so she could sit next to African American educator and activist Mary McLeod Bethune. Roosevelt would come to refer to Bethune as "her closest friend in her age group."

Legendary singer James Brown performed in front of a televised audience in Boston the day after Martin Luther King Jr. was assassinated. Brown is often given credit for preventing further riots with the performance.

Female science fiction author Octavia Butler was dyslexic. Despite her disorder, she went on to win Hugo and Nebula awards for her writing, as well as a "genius" grant from the MacArthur Foundation.

When African American neurosurgeon Ben Carson was a child, his mother required him to read two library books a week and give her written reports, even though she was barely literate. She would then take the papers and pretend to carefully review them, placing a checkmark at the top of the page to show her approval. The assignments inspired Carson's eventual love of reading and learning.

Politician, educator and Brooklyn native Shirley Chisholm survived three assassination attempts during her campaign for the 1972 Democratic nomination to the U.S. presidency.

Before lawyer Johnnie Cochran achieved nationwide fame for his role in the O.J. Simpson trial, actor Denzel Washington interviewed Cochran as part of his research for the award-winning film Philadelphia (1993).

At a time when universities did not typically offer financial assistance to Black athletes, African American football star Ernie Davis was offered more than 50 scholarships.

Jesse Jackson successfully negotiated the release of Lieutenant Robert O. Goodman Jr., an African American pilot who had been shot down over Syria and taken hostage in 1983.

Before he became an NBA legend, Michael Jordan was cut from his high school basketball team.

Chaka Kahn, dubbed the "Queen of Funk Soul," is also well known for singing the theme song to the public television's popular educational program Reading Rainbow.

Alicia Keys was accepted into Columbia University on a full scholarship, but decided to pursue a full-time music career instead.

In her early life, Coretta Scott King was as well known for her singing and violin playing as she was for her civil rights activism. The young soprano won a fellowship to the New England Conservatory of Music in Boston, Massachusetts, the city where she met future husband Martin Luther King Jr.

Martin Luther King Jr. was stabbed by a woman in 1958 while attending a book signing at Blumstein's department store in Harlem, New York. The following year, King and his wife visited India to meet Mahatma Gandhi, whose philosophies of nonviolence greatly influenced King's work.

African American fashion designer Ann Lowe designed the wedding dress of Jacqueline Kennedy Onassis, the bride of future President John F. Kennedy.

Supreme Court Justice Thurgood Marshall said that he was punished for misbehavior in school by being forced to recite the Constitution, ultimately memorizing it.

Garrett Morgan, the inventor of the three-way traffic signal, also became the first African American to own a car in Cleveland, Ohio.

In 1881, Sophia B. Packard and Harriet E. Giles founded what would become the first college for Black women in the United States. The school was named Spelman College after Laura Spelman Rockefeller and her parents, who were abolitionists. Laura was also the wife of John D. Rockefeller, who made a significant donation to the school.

John Baxter Taylor, the first African American to win an Olympic gold medal, also held a degree in veterinary medicine from the University of Pennsylvania.

Cathay Williams was the first and only known female Buffalo Soldier. Williams was born into slavery and worked for the Union army during the Civil War. She posed as a man and enlisted as William Cathay in the 38th
infantry in 1866, and was given a medical discharge in 1868.

Musician Stevie Wonder recorded the cries of his newborn daughter, Aisha Morris, for his popular song, "Isn't She Lovely?"

In 1926, Carter Godwin Woodson established Negro History Week, which later became Black History Month. The month of February was chosen in honor of Frederick Douglass and Abraham Lincoln, who were both born in that month.

The Selma to Montgomery marches marked the peak of the voting rights movement in Selma, Alabama. Of the three marches, only the last made it all the way to the capital of Montgomery, Alabama, which paved the way for 1965's Voting Right Act. The path is now a U.S. National Historic Trail.

Before he was a blockbuster actor, Will Smith was The Fresh Prince and, along with partner Jazzy Jeff, won the first-ever Grammy for Best Rap Performance. They boycotted the awards because the category was barred from television.
 

Eatonville, Florida, the childhood home of writer and cultural anthropologist (and my all-time favorite author!) Zora Neale Hurston, is also the first town in the country to be incorporated by African-Americans.

In 1967, Robert H. Lawrence, Jr. became the first African-American to be trained as an astronaut. He unfortunately died in a plane crash during flight training before he could be sent on his first space mission. Sixteen years later, Guion “Guy” Bluford carried on Lawrence’s legacy by becoming the first Black man in space.

The first successful open-heart surgery was performed in 1893 by a black surgeon named Dr. Daniel Hale Williams.

Betty Boop, the popular cartoon character introduced to the world by cartoonist Max Fleischer in 1930, was actually inspired by a real-life African American jazz singer and entertainer from Harlem named Esther Jones.

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Josephine Baker (1906-1975)

Performer and World War II Spy

Josephine Baker was a multitalented world-renowned performer, her successes ultimately lead her to Paris where she became known for her distinct dancing and unique costumes. One of her most legendary shows was at the Danse Sauvage when she danced across stage in a banana skirt. Above that, Baker was known for joining the fight against the Nazi regime and aiding the French Resistance during Word War II. Baker was well-known for her contributions to the civil rights movement and continued to fight racial injustices into the 1970s. Throughout her life Josephine adopted 13 children from different countries to show them that racial harmony could exist.



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Mary Jane Seacole (1805-1881)

Nurse, Healer, and Businesswoman

“Doubts and suspicions rose in my heart for the first and last time, thank Heaven. Was it possible that American prejudices against colour had some root here? Did these ladies shrink from accepting my aid because my blood flowed beneath a somewhat duskier skin than theirs?”

Mary Seacole is most known for setting up the “British Hotel” after applying for a nursing position in the Crimean and being rejected. She helped provide 'a mess-table and comfortable quarters for sick and convalescent officers'. Seacole cared for wounded servicemen on the battlefield and nursed many back to health, from nursing skills she learned from her mother.  The soldiers called her “Mother Seacole”. She was awarded the Jamaican Order of Merit in 1991. In 2004, she was voted the greatest Black Briton, a poll first undertaken in 2003 to vote for and celebrate the greatest Black Britons of all time.



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Ruby Bridges

American civil rights activist

"Racism is a grown-up disease and we must stop using our children to spread it."

Ruby Bridges became the first African American student to integrate an all-white public elementary school in the South at just six years old. She was the first Black student to attend William Frantz Elementary in Louisiana at the height of desegregation. Every day Ruby and her mother were escorted by federal marshals due to the hateful reactions of the school’s students, and their parents. Only one teacher at the school, Barbara Henry, would accept Ruby into her classroom, no other children attended class with Ruby and her teacher. Ruby never missed a day of school, former United States Deputy Marshal Charles Burks later said, "She showed a lot of courage. She never cried. She didn't whimper. She just marched along like a little soldier, and we're all very very proud of her.”  Ruby later became a civil rights activist.



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Bayard Rustin (1912-1987)

American leader in social movements

“We are all one - and if we don't know it, we will learn it the hard way.”

Bayard Rustin was often referred to as “Mr. March-on-Washington” by A. Philip Randolph whom he worked with on the March on Washington Movement to end racial discrimination in employment. Rustin led a number of protests throughout the mid and late 1900s and worked with Martin Luther King, Jr. to teach him about nonviolence – King said: “We are thoroughly committed to the method of nonviolence in our struggle, and we are convinced that Bayard’s expertness and commitment in this area will be of inestimable value.” Bayard Rustin was a gay man, and due to his disapproval over his sexuality he mostly acted as an adviser behind the scenes to many civil rights leaders. During the 1980s, he started speaking at events as an activist for gay causes and human rights. After his death, President Barack Obama awarded Rustin the Presidential Medal of Freedom in 2013.



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Amelia Boynton Robinson (1911-2015)

American activist

“Only until all human beings begin to recognize themselves as human beings will prejudice be gone forever. People ask me what race I am, but there is no such thing as race. I just answer: "I’m a member of the human race.”

Amelia Boynton Robinson was a civil rights activist in Selma, Alabama, who defended voting rights for African Americans and held voter registration drives from the 1930s-1950s. Robinson was the major figure in the infamous march to Selma in 1965, where she attempted to cross a bridge with fellow protesters that marched from Montgomery to demand their right to register to vote. Met by state troopers, Robinson was gassed, whipped, and badly beaten before being left for dead. A photograph was taken of her after the brutal assault that was published in magazines and newspapers all around the world. In 1990, Robinson won the Martin Luther King, Jr. Freedom Metal and continued to advocate for civil rights until her death in 2015, at the age of 104.



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James Meredith

American civil rights activist

“Nothing is a bigger waste of time than regretting the past and worrying about the future.”

James Meredith was the first African American student to attend college at the University of Mississippi. Going against a U.S. Supreme Court order to integrate the school, state officials initially refused and blocked Meredith’s entrance. This action led to large campus riots that left two people dead and hundreds injured. A couple days after the riots, Meredith was admitted to the university under the protection of federal marshals. He continued activism throughout his life, and in 1966 began a solitary protest march, which he called the March Against Fear, from Memphis, Tennessee, to Jackson, Mississippi, where he was shot by a sniper. Meredith survived the attack and was able to rejoin the march. He later ran for various public offices, most notably a seat in the U.S. Senate in 1972, but his bid was unsuccessful.



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The National African American Insurance Association (NAAIA) Florida, which is committed to diversity, equity and inclusion in every sector of the insurance industry, is raising $660,000 to establish the NAAIA Florida Endowed Scholarship in Risk Management/Insurance at the Florida State University College of Business as part of the newly formed NAAIA Florida Scholarship Program. The stated goal is to provide scholarship and job opportunities to African American and minority risk management students while simultaneously addressing the insurance talent gap and lack of diversity in management positions that currently plagues the industry.

NAAIA Florida founding board member, treasurer, and Kubicki Draper Equity Partner, Charles H. Watkins, and NAAIA founding member, Maria Abate, are driving the effort. 

NAAIA Florida partnered with FSU’s Dr. William T. Hold/The National Alliance Program in Risk Management and Insurance because it simply by reputation is one of the best in the nation, (U.S. News & World Report) and is cat bird situated to help NAAIA succeed. NAAIA Florida also is in the end stages of developing a partnership  with Florida A&M University as well, and plans to expand the program with FAMU students.

Mr. Watkins expounded that “ FSU’s Risk Management  program (RMI) really has excelled and is already popular in the insurance industry. They have  well established  internship programs with a mentoring piece as well. The school is proud of it’s successful work with students from underprivileged circumstances through FSU’s CARE Program and maximizes it’s outreach as well through various cooperative programs with Florida’s leading HBCU Florida  A&M University. Making the alignment with Florida State even more attractive, The RMI program excels at placing  graduates, and wants to be able to involve more carriers who will benefit from the placement of African American RMI graduates that they would be familiar with from the Internship and mentoring programs.”

Mr. Watkins further notes, “the NAAIA Florida scholarship program is designed to create a dual path where students will be exposed to several  insurance industry career opportunities, with employers being provided an eager and  skilled talent pool. It’s really  a total win as this  program will create a measurable pipeline producing lasting results in diversity, equity and inclusion, while replacing a retiring population of Insurance career employees. Kubicki Draper is proud to be a founding partner in this program, and joined  with our insurance industry partners, we can be game changers.” Companies interested in participating in the program and donating to the scholarship fund can contact Charles Watkins at cw@kubickidraper.com.

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In Spielberg v. Progressive Select Ins. Co., No. 4D19-3081 (Fla. 4th DCA Feb. 10, 2021), the Fourth DCA held that an auto insurer did not have to provide certain statutorily-prescribed policy cancellation notice requirements when the cancellation was requested by a named insured—as opposed to being initiated by the insurer itself.  Unbeknownst to Plaintiff, a named insured on the auto policy and who was involved in an auto accident four days after her son- also a named insured on the policy - requested the insurer cancel the policy.  Plaintiff argued that she did not receive proper notice of cancellation as required under Florida statutes. The Fourth DCA disagreed, explaining that although Plaintiff’s auto policy was of the type covered under the statutory provisions regarding cancellation notice requirements, the notice requirements had not been triggered since the request for cancellation was not one of the insurer-initiated reasons for cancellation laid out in the statutes. Accordingly, summary judgment in favor of Progressive was affirmed.

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Dr. Kizzmekia Corbett

Dr. Kizzmekia Corbett is the scientific lead for the Coronavirus Vaccines team at the National Institutes of Health (NIH), National Institute of Allergy and Infectious Diseases, Vaccine Research Center (VRC). Dr. Kizzmekia Corbett received her Ph.D. in Microbiology and Immunology in 2014. She was appointed to the VRC in 2014 and since has been developing novel coronavirus vaccines. This included mRNA-1273, which was designed by Dr. Corbett’s team and is leading candidate vaccine against the virus that causes COVID-19.


 
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Gwendolyn “Gwen” Sawyer Cherry (1923-1979)
 
“A champion for the rights of all people and a voice of reason and concern.” – Quote from U.S. Senator Bob Graham at Gwen Cherry’s eulogy reading.
 
Gwen Cherry was the first Black woman to attend the University of Miami School of Law, she was also the first black woman to practice law in Miami-Dade County, Florida. She was elected as a state representative and became the first black woman to serve as a legislator for the State of Florida. She served until 1979 and introduced the Equal Rights Amendment, Martin Luther King, Jr. state holiday, amongst many other legislations.



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Bass Reeves (1838-1910)

“I just might take a liking to being law. It's kind of fun.”
 
Bass Reeves was an American law enforcement officer, and the first black deputy U.S. Marshal west of the Mississippi River. Reeves had a long career as an officer and he had over 3,000 arrests of dangerous criminals on his record. Bass Reeves worked for 32 years as a federal peace officer in the Indian Territory where he developed superior detective skills and was never wounded despite having his hat and belt shot off on different occasions. Bass was said to be the most feared Deputy U.S. Marshal in the Indian Country. He was also the inspiration behind the character of the Lone Ranger. In 2013 Reeves was inducted into the Texas Trail of Fame.

 


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Bessie Coleman (1892-1926)
 
“You’ve never lived till you’ve flown.”
 
Bessie Coleman was an American aviator the first African-American woman and first Native-American to hold a pilot license. Bessie received her pilot license from Fédération Aéronautique Internationale in June of 1921 and became the first black person to earn an international pilot’s license. Bessie developed an interest in flying and decided to travel to France to go to flight school because there were no opportunities in the United States for African Americans, women, or Native Americans. Bessie soon became notorious for participating in very dangerous air shows in the United States. Bessie was known as Queen Bess and Brave Bessie, she hoped to one day open a school for African-American fliers, but sadly passed away in a plane crash. She was an inspiration to many early pilots in the African-American and Native-American communities.



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Onesimus (birth and death date unknown)
 
There is very little information about the birth of Onesimus, but it is assumed that he was born in African in the late 17th century before he landed in Boston. Onesimus was a gift that was given to Cotton Mather from his congregation. Onesimus told Mather about a centuries old practice of extracting the material from an infected person and scratching into the skin of an uninfected person, which could purposely introduce smallpox to the healthy individual making them immune. This was considered extremely dangerous at the time, but it was tested when the smallpox epidemic hit Boston and over 200 people were immunized. This traditional African practice was used to immunize American soldiers during the Revolutionary War.

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Dr. Charles Drew (1904-1950)
 
Charles Drew was a African-American surgeon and medical researcher who pioneered and developed improved techniques for storing blood plasma for transfusion. Dr. Drew developed and organized the first large-scale blood bank in the United States early in World War II, which helped saved thousands of lives. Drew protested against the racial segregation in the donation of blood, based on the lack of scientific substance. He later resigned after a ruling that the blood of African-Americans would be segregated.


 
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Lisa Gelobter
Founding formulator of early GIF images.



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Alexander Miles
Invented the automatic opening and closing elevator doors.



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Garrett A. Morgan
Invented the three-position traffic signal and a smoke hood (precursor to the gas mask).



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Frederick Jones
Invented portable air-cooling units. Portable cooling units he designed were vital during World War II to preserve blood, medicine, and food for use at army hospitals.



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John Standard
Invented the refrigerator.



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Black Americans have been making contributions to America from its inception and yet, so many are little-known. In many cases, life-changing contributions which is why we’d like to focus on presenting brief facts about some amazing figures you may not have heard about over the next few weeks.  The accomplishments these and other Black Americans achieved even with the overwhelming obstacles in their way, we hope are an inspiration to those who find themselves in a situation seemingly impossible to overcome. 

Claudette Colvin

1950s Civil Rights Movement Pioneer

Before Rosa Parks, 15-year-old Claudette Colvin, refused to move to the back of the bus and give up her seat to a white person.

Most have heard about Parks and the Montgomery, Alabama bus boycott, but many do not know there were other women who refused to give up their seats including Colvin who did it 9 months before Parks.  In fact, Colvin was one of four women plaintiffs in Browder v. Gayle – the case that successfully overturned bus segregation laws in Alabama.



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Hosea Lorenzo Williams (1926-2000)

American Civil Rights Leader, Activist, Ordained Minister, Businessman, Philanthropist, Scientist, Politician

“We build the path as we can, rock by rock.”

Hosea Williams was known as one of Dr. Martin Luther King’s right-hand men.  He regularly helped King motivate the public into action against social injustice and was at the forefront of many major events. Following King’s 1968 death and to commemorate King’s legacy, Williams founded the Hosea Feed the Hungry, a non-profit foundation widely known in Atlanta for providing hot meals, haircuts, clothing, and other services for the needy on Thanksgiving, Christmas, Martin Luther King, Jr. Day and Easter Sunday.



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Fannie Lou Hamer (1917-1977)

American Voting and Women’s Rights Activist, Community Organizer

"Nobody's free until everybody's free."

Fannie Lou Hamer was a powerful voice in the civil and voting rights movement.  She co-founded the Mississippi Freedom Democratic Party (MFDP), which challenged the local Democratic Party’s efforts to block Black participation, and she helped organize Freedom Summer which brought hundreds of college students, Black and white to help with African American voter registration in the segregated South. And later, she helped found the National Women’s Political Caucus.  Hamer was also a leader in the efforts to create more economic opportunities for African Americans.  She launched the Freedom Farm Cooperative (FFC) which bought up land that Blacks could own and farm.


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Ella Josephine Baker (1903-1986)


American Community Organizer and Political Activist

“We who believe in freedom cannot rest.”

Inspired by the historic bus boycott in Montgomery, Alabama, in 1955, Baker co-founded the organization In Friendship to raise money for the civil rights movement in the South. She also met with a group of Southern black ministers and helped form the Southern Christian Leadership Conference (SCLC) of which Martin Luther King, Jr., served as first president.  Baker served as its first director. She left the SCLC in 1960 to help student leaders of college activist groups organize the Student Nonviolent Coordinating Committee (SNCC). With her guidance, SNCC became one of the foremost advocates for human rights in the country. Her influence earned her the nickname: “Fundi,” a Swahili word meaning a person who teaches a craft to the next generation.



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The Florida Supreme Court recently issued its much-awaited decision in Citizens Property Insurance Corporation v. Manor House, LLC, SC19-1394, 2021 WL 208455 (Fla. Jan. 21, 2021). The holding is monumental and the importance far-reaching. The full decision is available at: https://www.floridasupremecourt.org/content/download/714811/opinion/sc19-1394.pdf

The case arises from a property damage claim reported under a policy of insurance issued by Citizens following Hurricane Frances in 2004. The Citizens policy insured nine apartment buildings owned by Manor House that were damaged by the hurricane. Citizens issued significant payments for repairs in the course of the claim and additional payments after receiving a request to reopen the claim. At some point after the claim was reopened, a dispute arose regarding whether Citizens owed yet additional sums under the policy. Manor House filed suit seeking payment of allegedly “undisputed amounts” and seeking to compel appraisal. The matter proceeded through appraisal, after which Citizens issued an additional net payment on the appraisal award. However, Manor House still proceeded to again file suit, claiming breach of contract and even fraud. The damages sought in the breach of contract claim included consequential damages, allegedly for lost rental income. The trial court agreed with Citizens that the fraud claim was barred by the independent tort doctrine and granted judgment on the pleadings as to that count. It also granted partial summary judgment for Citizens as to the lost rental income at issue in the breach of contract count, finding the policy covered property damage but not lost rent.

In the initial appeal, the Fifth District Court of Appeal affirmed the trial court’s ruling on the fraud claim, holding that claim was barred both because (1) it failed to plead a tort claim that was independent of the breach of contract claim, and (2) in substance it alleged a claim for bad faith and unfair claim handling, for which Citizens is immune as a governmental entity. However, the Fifth District reversed the partial summary judgment on the lost rent claim at issue in the breach of contract count, holding that the “consequential damages Manor House seeks are based squarely on breach of contract claims,” and did not implicate bad faith. See Manor House, LLC v. Citizens Property Insurance Corp., 277 So. 3d 658 (Fla. 5th DCA 2019), quashed by SC19-1394 (Fla. Jan. 21, 2021).

On review, the Florida Supreme Court honed in on the question of great public importance certified by the Fifth District on rehearing: “IN A FIRST-PARTY BREACH OF INSURANCE CONTRACT ACTION BROUGHT BY AN INSURED AGAINST ITS INSURER, NOT INVOLVING SUIT UNDER SECTION 624.155, FLORIDA STATUTES, DOES FLORIDA LAW ALLOW THE INSURED TO RECOVER EXTRA-CONTRACTUAL, CONSEQUENTIAL DAMAGES?” Citizens Property Insurance Corporation v. Manor House, LLC, SC19-1394, 2021 WL 208455 (Fla. Jan. 21, 2021).

In the Florida Supreme Court’s recent decision, it decisively answered, “No.”  In so holding, the supreme court concluded “extra-contractual, consequential damages are not available in a first-party breach of insurance contract action because the contractual amount due to the insured is the amount owed pursuant to the express terms and conditions of the policy. Extra-contractual damages are available in a separate bad faith action pursuant to section 624.155 but are not recoverable in this action against Citizens because Citizens is statutorily immune from first-party bad faith claims.” Id. The supreme court also emphasized that in a first-party insurance claim, the contractual amount owed is the amount due under the terms and conditions of the policy. Thus, a crucial fact was that the particular policy did not provide coverage for lost rental income. As a result, Manor House could not seek damages in a breach of contract action for “consequential damages” for lost rent, when the same simply was not covered under the policy. Any such consequential damages were thus, by definition, “extra-contractual” damages of the type that could only be sought in a well-pled, ripened bad faith claim brought pursuant to §624.155, Fla. Stat. But because Citizens is ordinarily immune from bad faith, Manor House’s claims simply failed as a matter of law under any view. Accordingly, the Florida Supreme Court quashed the Fifth District’s decision on the breach of contract count and remanded for proceedings consistent with its opinion. (The Fifth District’s ruling on the fraud count was not addressed by the supreme court and remains good law).

The Florida Supreme Court’s holding in Manor House vindicates and upholds an insurer’s right to enforce the terms and limits of the policy contract. This is immensely significant, especially in the current litigation age where the Plaintiffs’ Bar has increasingly trended toward attempting to inject “disguised” bad faith claims and claims for consequential, extra-contractual damages, into what should be straight-forward breach of contract claims. The supreme court’s decision in Manor House should go a long way to stopping such claims and tactics in their tracks. Thus, the holding should have a decidedly favorable impact on defending first-party claims of any type, whether they be claims for property damage, uninsured/underinsured motorist (UM) benefits, and even personal injury protection (PIP) claims.


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Congratulations to Jennifer L. Feld, of our Tampa office, for being featured in the KNOW Tampa. The KNOW features women who are leaders, creators, and entrepreneurs in their industries and in the community. We are so proud of Jennifer and her many accomplishments. There is no doubt we’ll see much more from her -- she is unstoppable! Congrats, Jen! Read here.






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Following the December 31, 2020 decision in Wilsonart, LLC v. Lopez and prospective change to the Florida Rules of Civil Procedure by Florida's Supreme Court, Florida became the 39th state to adopt the federal standard for summary judgment, colloquially known as the Celotex standard. The Florida Supreme Court amended Rule of Civil Procedure 1.510, adding the following language:

While the text of the summary judgment rule in both the Florida (Rule 1.510) and federal rules of procedure (Rule 56) is virtually identical, Florida courts have traditionally applied a more stringent standard to summary judgment. The crucial difference is how courts evaluate factual disputes: under Florida's jurisprudence, the existence of any factual dispute, no matter how trivial, is sufficient to defeat summary judgment; under the Celotex standard, the court instead focuses on whether a reasonable jury could return a verdict for the nonmoving party despite the factual dispute. In other words, a factual dispute under Celotex may not be fatal to a motion for summary judgment if the underlying fact in dispute would not change a jury's verdict.

In the Wilsonart decision, the Florida Supreme Court did not actually invalidate or re-interpret existing law; instead, it merely approved of adopting the Celotex standard. Therefore, practitioners should be prepared for “growing pains” among judges at the trial court level and in the district courts of appeal in navigating this new standard and making decisions accordingly in summary judgment proceedings, until a more concrete standard is created, applied, and trickles down through the Florida court system.

The amended Rule 1.510 takes effect on May 1, 2021, allowing practitioners and interested parties a chance to publicly comment on the proposed rule change. Because the new rule language as presently proposed is broad, the possibility exists the language will be refined to further clarify the precise standard for summary judgment. In the interim, Florida's summary judgment jurisprudence remains in effect.

In the short term, parties should focus in applicable cases on having previously-denied Motions for Summary Judgment reconsidered after May 1. However, the costs and benefits of doing so should be weighed on a case-by-case basis, keeping in mind the true magnitude of this decision is highly dependent on how Florida appellate courts apply Celotex. As a result, months or more may elapse before defense lawyers are able to fully evaluate how this new standard will affect case strategy moving forward.

Kubicki Draper’s Angela Flowers wrote an amicus brief in support of the adoption of Celotex on behalf of the Federation of Defense and Corporate Counsel. The attorneys at Kubicki Draper are prepared to discuss this noteworthy development and answer questions about how it may impact case handling and strategy after May 1, 2021.

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Please join us in congratulating our law clerks, who recently passed the Florida Bar exam! We applaud their outstanding achievements and welcome them as our newest Associates. The future is bright!


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We are proud to announce Ken Oliver, of our Ft. Myers office, is the new President of the Southwest Florida Chapter of American Board of Trial Advocates (ABOTA)!
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We are pleased to announce, Shirlarian Williams, of our Ft. Myers office, has been named the President of Lee County Bar Association’s Young Lawyers Division. Congratulations, Shirlarian! We are very proud of your well-deserved appointment and know you will be a great leader!





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UPDATED INFORMATION FOR FLORIDA COURTS

STATE COURTS

08/12/2020 Amendment 6 to AOSC20-23 - Order on COVID emergency measures in the state courts
[https://www.floridasupremecourt.org/ezs3download/download/642474/7297339]

08/12/2020 Amendment 3 to AOSC20-32 COVID-19 health & safety procedures in the state courts
[https://www.floridasupremecourt.org/ezs3download/download/642473/7297334]

• Providing updated criteria for the transition to different phases
• Requiring a human resources policy at each court to address potential COVID-19 exposure of court employees and judges
• Updating health screening criteria for entry into a courthouse
• Providing updated guidance for courts in monitoring local conditions and public health data when expanding in-person proceedings
• Providing a methodology to determine deteriorating local health conditions that would require an amendment to a local operational plan or a return to an earlier phase

10/2/2020 Amendment 7 to AOSC20-23 - Order on COVID emergency measures in the state courts
[https://www.floridasupremecourt.org/content/download/672679/file/AOSC20-23-Amendment-7.pdf]

9/30/2020 Amendment 1 - AOSC20-12 - Order on monitoring and planning in response to COVID-19
[https://www.floridasupremecourt.org/content/download/672284/file/AOSC20-12-Amendment-1.pdf]

FLORIDA SUPREME COURT

https://www.floridasupremecourt.org/ezs3download/download/637809/7251452

Statewide grand jury proceedings shall remain suspended through July 26, 2020.

All other jury proceedings, including grand jury proceedings, jury selection proceedings, and criminal and civil jury trials, shall remain suspended until 30 days after the chief judge of a judicial circuit has determined that the circuit or a county within the circuit has transitioned to Phase 2 pursuant to Fla. Admin. Order No. AOSC20-32.

Essential and critical trial court proceedings should continue to be conducted remotely or, if necessary, in person.

In re: Remote Civil Jury Trial Pilot Program, Fla. Admin. Order No. AOSC20-31, judicial circuits selected to participate in the program may during and after COVID-19 conduct remote civil jury trials pursuant to the requirements established by the workgroup.

AOSC20-23 Updates new deadlines and address new Phase 3 guidelines -  https://www.floridasupremecourt.org/ezs3download/download/639134/7265622
                                                                                                                  

AOSC20-32  Establish a certification process for moving to Phase 3  - https://www.floridasupremecourt.org/ezs3download/download/639136/7265632

INTERMEDIATE APPELLATE COURTS

FIRST DISTRICT COURT OF APPEAL

• August and September Oral Arguments conducted on zoom video platform. The resulting video and audio will be available to the public on the court’s website at https://www.1dca.org/
• Following Florida Supreme Court directives.

Message to the Public (updated 8/03/2020)
[https://www.1dca.org/content/download/639002/7264019/A%20MESSAGE%20TO%20THE%20PUBLIC_updated%208-3-20.pdf]

SECOND DISTRICT COURT OF APPEAL

• The Second DCA will be conducting oral arguments remotely beginning in May.

THIRD DISTRICT COURT OF APPEAL

  

09/04/2020 Notice - THIRD DISTRICT COURT OF APPEAL BUILDING RE-OPENS TO THE PUBLIC

In view of the decline of the positivity rate for  COVID-19 cases, and the related decline in hospitalizations and emergency department visits in our district, the Third District Court of Appeal, has met the Florida State Courts guidelines to advance to the next phase of post-COVID-19 reopening.

As a result, the courthouse building is now open to the public.  The following safety requirements must be observed:
 

• Persons visiting the Clerk’s Office will be allowed entry after successful completion of a COVID-19 health screening and temperature check.
• While on the premises, all persons must wear a face covering and gloves.  If needed, mask and gloves will be provided at no charge, at the security checkpoint.
• Current CDC social distancing guidelines must be observed at all times.
• The courtroom remains closed as oral arguments continue to be conducted remotely.
• All other visitors must make an appointment with the Marshal at (305)229-3200 ext.0.
• Attorneys and pro se litigants should continue to file documents electronically, via the Florida E-Filing portal at www.myflcourtaccess.com.

FOURTH DISTRICT COURT OF APPEAL

• The Court’s in-person oral argument sessions scheduled through July 28th have been canceled.
• Oral arguments which will be conducted by audio or video conference will be streamed for the public on the Court’s website.
• The court may reschedule future oral arguments or conduct oral argument by remote means.
• No oral arguments will be held in the month of August.

FIFTH DISTRICT COURT OR APPEAL

https://www.circuit5.org/

• Essential Hearings and Approved Non-Essential hearings are being conducted via electronic means.
• Following the directive of Florida Supreme Court.

CIRCUIT AND COUNTY COURTS

FIRST JUDICIAL CIRCUIT

SECOND JUDICIAL CIRCUIT

• Supreme Court issued “Best Practices” guidelines on May 11, 2020, that were developed by a statewide COVID-19 Workgroup to help people navigate new remote procedures used by state courts in the coronavirus pandemic
• Court will reschedule proceedings or arrange for remote capabilities
• Mediation may be conducted by video conference or telephone when possible.
• Following Florida Supreme Court directives

THIRD JUDICIAL CIRCUIT

• Non-essential proceedings to be held remotely, if possible.
• Jury trials suspended.
• Zoom video tutorials  https://support.zoom.us/hc/en-us/articles/206618765-Zoom-Video-Tutorials

FOURTH JUDICIAL CIRCUIT

• AO 2020-18 Extension of Phase II Operational Plan for COVID-19 Emergency Through July 31, 2020
• All criminal and civil jury trials are suspended through July 31, 2020
• The Phase II Operational Plan is attached to this Order as Appendix A.
• Hearings shall be conducted either by telephonic means or video conference utilizing the Zoom Application or Skype.

FIFTH JUDICIAL CIRCUIT

• Non-essential hearings to be conducted electronically.
• Following Florida Supreme Court directives.

SIXTH JUDICIAL CIRCUIT

• Following Florida Supreme Court directives. https://www.floridasupremecourt.org/content/download/637271/7239420/AOSC20-23%20Amendment%203.pdf
• The Florida Supreme Court has extended the suspension of all criminal and civil jury trials from July 2 through July 17, 2020.
• All time periods involving the speedy trial procedure from July 6 through July 20 for all criminal and juvenile court proceedings.

NEW ORDERS SETTING HEALTH AND SAFETY MEASURES IN COURTS

AOSC20-23 Amendment 2 Comprehensive COVID-19 Emergency Measures

AOSC20-32 In re COVID-19 Public Health and Safety Precautions for Phase 2 expands the type of hearings that can be held face-to-face when the Circuit meets the criteria.

The Sixth Judicial Circuit Covid-19 Information and Updates http://www.jud6.org/Covid-19Information07062020.pdf. 

SEVENTH JUDICIAL CIRCUIT

07/02/2020 Re:  Phase 2 Transitions for Court Facilities

[http://www.circuit7.org/Communications/Phase_2.pdf]

EIGHTH JUDICIAL CIRCUIT

07/27/2020 AO 11.35
[https://circuit8.org/wp-content/uploads/11.35-Alachua-County-Transition-to-Phase-2.pdf]

• Alachua County transitioning to Phase 2 effective 07/28/2020

NINTH JUDICIAL CIRCUIT

• Jury trial to resume in October

Continued updates on the Tenth - Twentieth Judicial Circuit and Federal Courts here. 

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May 25, 2021
12:00 p.m. - 1:00 p.m. EST

Presented by members of KD's Hospitality, Retail, and Premises Liability Practice Group
Presenters: Rebecca Brock, Jason Friedman, Francesca Ippolito-Craven, Steffen LoCascio

This presentation will explore how to strategically maximize opportunities for early case resolution. The presenters will share real life examples of tactics that can assist in resolving cases early, and also share some experiences where attempts at early case resolution was ultimately counterproductive.

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


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

Presenters: Michael Carney, Eli Marger

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

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


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

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

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

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


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

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

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

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


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

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

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

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

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


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

Presenters: Peter Baumberger and Benjamin Cohen

This presentation will discuss and review Liens and Set offs.

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


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

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

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

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

Presenters: Caryn Bellus, Jared Brownfield, and Brian Chojnowski

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

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

Presenters: Kimberly Beckwith and Francesca Ippolito-Craven

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

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


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

Presenters: Harold Saul, Pedro Lopez, Sharon Degnan

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

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

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

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

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

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


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

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

Are you an All-Lines Florida licensed adjuster who needs to fulfill Florida's 5-Hour Law & Ethics (5-620) requirement?

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

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

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

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

Presenters: Charles Kondla and Michael Suarez

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

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


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01/28/21
12:00 p.m. - 1:00 p.m.

Presenters: Donna Hunter, Carmela Jackson, Raquel Loret de Mola, Jennifer Remy-Estorino

Join members of our Hospitality, Retail, and Premises Liability Group for this complimentary webinar!

In Florida, with its sunny weather and tourist industry, swimming pools generate a tremendous amount of liability claims, including slip-and-fall and falling-object claims. Various defenses, including the open and obvious doctrine, may be applicable. It is critical for carriers (and their insureds) to select defense counsel who is well-versed in litigating these cases.

This course will provide tips for evaluating these premises cases, and will review some of the critical decisions that need to be made to provide the best defense in these slippery situations.

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

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12/09/20
10:00 a.m. - 3:00 p.m.

Presenters: Anthony Atala, Jason Friedman, Jennifer Remy-Estorino, Ken Oliver, Steve Cozart

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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December 1, 2020
12:00 p.m. - 1:00 p.m.

Presenters: Lisandra Guerrero, Charles Kondla, Michael Balducci, and Harold Saul

This course explores the potential theories of liability that may be asserted against premises owners and operators in seeking to hold them responsible for the criminal acts of others, the methods used by claimants to prove inadequate security on the premises, and the defense strategies that should be employed to successfully defeat such claims.

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


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November 17, 2020
12:00 p.m. - 1:00 p.m.

Presenters: Donna Hunter, Charles Kondla, and Greg Prusak

This presentation will explore premises cases dealing primarily with slip and falls and falling objects. Learn about things to consider when adjusting such a claim from the status of a claimant at the time of the injury to the bones of transitory substance claims and dangerous conditions caused by falling objects. The presenters will share with real life examples of handling such claims.

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


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November 12, 2020
10:00 a.m. - 11:00 a.m.

Presenters: Teresa Cummings and Paul Michael Gabe

This course will include an analysis in determining the strength of an IME Report and how and when the insurer should defend based on the IME report or opinion. Additionally, we will discuss the medical provider’s documentation and how that affects the strength of the IME report.

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

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November 12, 2020
12:00 p.m. - 2:00 p.m.

Presenters: Charles Watkins, Jarred Dichek, and Virginia Austin (Florida Peninsula)

Upon completion of this course you will be able to: Recognize and identify more complex, nuanced issues related to property fraud, Develop best practices in the adjustment and investigation of potential fraudulent claims, Better understand how to use the investigative tools in the insurance policy, Recognize and prevent bad faith exposure in adjusting and investigating claims.

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


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November 10, 2020
10:00 a.m. - 12:00 p.m.

Presenters: Sam Itayim, Ava Mahmoudi, Nurelys Pereiro and Michael Walsh

Educate insurance professionals on alternative defenses that may arise in Florida PIP claims and suits.

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


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IN THIS ISSUE:

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

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Brian Chojnowski

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IN THIS ISSUE:

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

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

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IN THIS ISSUE:

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Lillian R. Sharpe and Michael Balducci, of our West Palm Beach office, won a summary judgment motion in a federal case involving a pretty savvy pro se plaintiff who claims to have been bitten by spiders at our client’s outdoor restaurant in Fort Pierce. Plaintiff had extensive injuries, but she did not report the bites at the restaurant as the swelling/infections reportedly started within the next day or two, and she delayed seeking treatment as she was on vacation. Lillian and Michael argued that Plaintiff could not prove negligence, let alone proximate cause, and the Court granted their motion for summary judgment. 

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Jennifer Levine Feld, of our Tampa office, obtained a voluntary dismissal with prejudice in a Category 3 Hurricane Irma AOB case in Brevard County, which was set for trial this fall.  While the Board of County Commissioners ultimately deemed the entire building condemned, unsafe, a public nuisance, and posed imminent danger to occupants, the dry-out company proceeded with its work.  Counsel quickly agreed to file a voluntary dismissal with prejudice of all claims, including fees, at the corporate representative’s deposition.

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Michael Balducci and Lillian R. Sharpe, of our West Palm Beach office, successfully got the court to dismiss two companion first-party property claims involving claimed water damage.  Plaintiff failed to attend scheduled EUO, which was (barely) requested within the 90 days following the notice of the claim, due to a suspected prior water loss, which the carrier wanted to investigate first.  Plaintiff argued the carrier needed to either pay or deny the claim within the 90 days of the claim per statute, but Michael persuaded the court that the carrier had good reason to request the EUO so they could not reasonably pay the claim within the 90-day period.  The Court agreed and dismissed both cases. Proposals for settlement were filed, and Plaintiffs are likely collectible. 

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