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In Haratz, DDS, P.A. v. Dental Team of Atlantis, LLC, No. 4D2022-3228 (Fla. 4th DCA September 13, 2023), the Fourth District reversed the trial court’s order of dismissal with prejudice, holding that where a complaint generally alleges that all conditions precedent to bringing suit have been satisfied by the plaintiff or waived by the defendant, dismissal is improper if the defendant fails to refute the specific allegation in a motion to dismiss. In the underlying action, the trial court erred in granting dismissal, as factual issues regarding Plaintiff/Appellant’s compliance with conditions precedent remained due to the Appellee/Defendant’s failure to address the complaint’s waiver allegations in its motion to dismiss. Read the entire opinion here.
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The Third District Holds that the Question of Whether an Insured is Entitled to Coverage Under the Plain Language of a Policy Should Have Been Resolved on Directed Verdict.

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

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

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

To learn more about the Age-Friendly Institute, visit: https://institute.agefriendly.org/initiatives/certified-age-friendly-employer-program/
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In Universal Property & Casualty Ins. Co. v. Caboverde, Case No. 4D22-1059 (Fla. 4th DCA June 28, 2023), the Fourth DCA reversed final judgment for homeowners on a ceiling collapse claim after jury trial where they failed to prove collapse was caused by a named peril under the policy. Specifically, the homeowners presented no evidence at trial that hidden and unknown decay or insect damage existed at the time of the collapse and thus could not have proven it caused the collapse. Rather, the only witness who testified about termite damage, their contractor expert, did not inspect the home until 5 years after the loss and did not know how long termites were there. The Fourth DCA remanded for final judgment in the insurer’s favor. To read full opinion, click here. 
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In Silvia v. Castle Key Insurance Company, No.: 1D21-3889 (Fla. 1st DCA June 14, 2023), the trial court granted the insurer’s motion to invoke appraisal and abate litigation finding that the insurer’s conduct did not result in a waiver of its right to invoke appraisal. The First DCA reversed, holding that the insurer did not invoke the right to appraisal at the first opportunity. Instead, the insurer actively participated in litigation, which waived its right to appraisal. To read full opinion, click HERE. 
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In Salyer v. Tower Hill Ins. Co. and Mason Dixon Contracting, Inc., No. 5D22-345 (Fla. 5th DCA June 2, 2023), the trial court entered summary judgment against an insured finding that the insured surrendered standing to sue her insurer for breach of contract by signing an assignment of benefits to the contractor for services rendered by the contractor. The Fifth DCA reversed holding that because the assignment of benefits was tethered to the work that the contractor was to perform—and the contractor performed no work—the insured retained standing to seek the enforcement of her insurance policy. To read more, please click the link below.
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Congratulations to Jonathan Aihie, from our Miami office, for being selected for inclusion in the National Black Lawyers, Top 40 Under 40 attorney list. This is an invitation-only organization comprised of attorneys recognized for their superior qualifications, legal results and professional leadership. Each year, only 40 attorneys from each state are selected for inclusion. To learn more, visit: http://www.nbltop100.org/.


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Please join us in congratulating Fabiola Meo, who recently passed the Florida Bar exam and became our newest associate! We applaud her outstanding achievement and look forward to more great things from her! 


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We are pleased to announce KD has been ranked in the South Florida Business Journal’s “Top Law Firms in South Florida” list for 2023. The list ranks South Florida law firms by number of lawyers, partners and total staff. To read more, visit the link here. 


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

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

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


Defending Construction Cases and the Possibility of Early Resolution

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

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

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



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


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


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

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


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

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

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

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

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

Space is limited, so register today!

Conference Program

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

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

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

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

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

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

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IN THIS KDQ ISSUE:

• KD in the Community
• What to Cover When Coverage Issues Arise: 5 Tips for Determining If You Need An EUO and, If So, What Questions to Ask
• Spotlight on Jason Friedman
• News / Annoucements
• The Ins and Outs of Florida Deceptive & Unfair Trade Practices Act Claims: What They Are, What Considerations Are Needed, and How to Defend Them
• Under Construction: A Quick How-To for Investigating & Analyzing Roadway Claims Occurring in or Near Construction Zones
• Presentations & Speaking Engagements
• Recent Results: Appellate
• Recent Results: Trials & Motions
• New Team Members
• New Additions
• Contact Info

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IN THIS KDQ ISSUE:

• KD in the Community
• Recent Rule Change Allows for Immediate Appellate Review of Orders Permitting or Denying Punitive Damages
• Insuring a Subcontractor? Four Factors to Consider in Evaluating a Tender Demand from a General Contractor
• Spotlight on Laurie Adams
• Presentations and Speaking Engagements
• Appraisal: The Secret Weapon You May Want to Consider for Your Claim
• On the Hook for a Prevailing Party's Attorney's Fees? Here's What to Know About Contingency Fee Multipliers
• Recent Results: Appellate and Trials, Motions, Mediations
• Charting the Right Course in Admiralty Jurisdiction: 5 Tips for Staying Afloat
• New Team Members
• News / Annoucements
• Contact Info

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IN THIS ISSUE:

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

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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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Michael Clarke, Jennifer Emerson, and Joye Walford of Kubicki Draper’s Tampa office, obtained the reversal of a Final Judgment in Progressive Select Insurance Company v. The Imaging Center of West Palm Beach aao Erica Prete, No. 4D21-3074 (4th DCA March 8, 2023). The Fourth District found that the trial court erred in denying the Insurer leave to amend its Answer and Affirmative Defenses. The Insurer sought to add new affirmative defenses including the invalidity of a pre-suit demand letter and the exhaustion of benefits.The amendments were essential as the Plaintiff had raised a new argument supporting its cause of action after a change in governing law in its favor. The Fourth District found that the trial court appeared to have denied the motion to amend on the basis that it was untimely but failed to consider that the Plaintiff had not been prejudiced by the proposed amendments and could prepare for the additional affirmative defenses. This was particularly true as the motion to amend had been filed before any summary judgment hearing or trial date had been set.  
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Congratulations to Caryn Bellus and Ben Carter, of our Miami office, who prevailed in a federal court appeal arising out of the defective construction of a casino in Maryland.

Caryn and Ben represented Cincinnati Specialty Underwriters Insurance Company, which issued a CGL policy to window contractor KNS Group, LLC. The subcontractor who hired KNS, GM&P Consulting and Glazing Contractors, Inc., was eventually sued by the casino’s owner for faulty workmanship, and GM&P sought a defense and indemnity as an additional insured on KNS’s policy, which Cincinnati denied. In the subsequent coverage action, the district entered summary judgment for Cincinnati, finding that it had no duty to defend or indemnify GM&P because the policy’s additional insured coverage only extended to claims of vicarious liability for KNS’s negligence, which the underlying complaint did not allege.

On appeal, GM&P argued that the policy, which covered GM&P for property damage caused “in whole or in part” by KNS, included the casino owner’s claims because the underlying complaint alleged improper installation of the casino’s “glass façade,” which GM&P had subcontracted to KNS. In response, Cincinnati argued that the underlying complaint said nothing about KNS, and thus GM&P was being sued only for its own negligence, which the plain language of the policy did not cover. The Eleventh Circuit agreed, holding that the policy only covered GM&P for liability that “is caused by or occurs by reason of acts or omissions of the named insured.” Because there were no such allegations in the underlying complaint, the court affirmed summary judgment for Cincinnati.

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Sharon C. Degnan, of our Orlando office, obtained an affirmance in Branch v. Rodrigues, 336 So. 3d 722 (Fla. 2d DCA 2022).  The case involved a relatively minor accident where the plaintiff, a garage door installer who frequently had to strain his arms and neck in his job, reported that he injured his arms and neck in the accident. Stefanie D. Capps, of our Ft. Myers office, tried the case originally, obtaining a total defense verdict and was also successful in securing orders to exclude the plaintiff’s biomechanical/accident reconstruction expert from testifying at trial and permitting the defendant’s biomechanical/accident reconstruction experts to testify. The plaintiff appealed, arguing that the trial court erred in striking his expert and in allowing ours to testify and further argued that our experts’ testimony improperly pyramided inferences.  Sharon highlighted the fact that the plaintiff’s biomechanical expert used an unreliable methodology and lacked familiarity with the simulation software discussed in his report.  She also laid out the incredibly detailed, step-by-step analysis used by the defense experts and explained that not only were they qualified to testify, their methodology was reliable and did not improperly stack inferences.  The Second District Court agreed. 
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Sharon C. Degnan, of our Orlando office, prevailed on appeal in the products liability case of Grieco v. Daiho Sangyo, Inc., 2022 WL 2136932 (Fla. 4th DCA June 15, 2022), where the underlying plaintiff sustained injuries after he was struck by a vehicle driven by a young woman whom had been “huffing” computer duster spray, which she had just purchased at a nearby Wal-Mart. The plaintiff sued Wal-Mart along with the duster spray manufacturer and distributor under strict liability and negligence theories. The trial court below granted final summary judgment for Wal-Mart, the manufacturer, and the distributor, and the plaintiff appealed. Sharon argued as lead counsel on behalf of all three appellees.  In an 18-page opinion, the Fourth District Court of Appeal agreed with Sharon that, with respect to strict liability for the alleged design defect of the duster spray, the proper scope of inquiry is to consider the reasonable expectations of the consumer. In this case, the consumer was the tortfeasor, and no inference could be made that she had an ordinary expectation of the product performing safely because she had no intention of using it for its customary use. The court further re-affirmed the line of cases that holds that the manufacturer, distributor, and seller of a product cannot be held strictly liable when a third party’s injuries result from a consumer’s unintended and illegal use of a product. Regarding the plaintiff’s argument as to strict liability for the appellees’ alleged failure to warn due to a deficient warning label, the court rejected this, noting that the label stated that inhaling the product could be harmful or fatal, and explained that a bitterant was added to deter inhalation of the product. No additional warnings were needed with respect to the dangers of specifically driving while inhaling the product, as the plaintiff had argued. The last point the court addressed was the common law negligence count, which the lower court granted summary judgment on by finding that the intoxicated driver’s conduct was the sole superseding cause of the accident and injuries. The court wrote an in-depth analysis of foreseeability in the context of duty and proximate causation, and further reiterated that in some scenarios the question of proximate cause—normally one for the jury—can be a question to be resolved for the court, especially in the context of intervening negligence. The court also noted that the question of duty is not one to “the world at large” but arises out of the relationship between the specific parties, which is a more narrow inquiry, especially in cases involving the negligence of a third party.
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Bretton C. Albrecht, of our Ft. Lauderdale office, recently prevailed in getting four trial court orders confirming appraisal awards in four related cases overturned. In State Farm Florida Insurance Company v. Roof Pros Storm Division, Inc. a/a/o Jesse Scott, 2022 WL 2374147 (Fla. 5th DCA July 1, 2022), four separate homeowners insured with State Farm filed claims for storm-related roof damage. Each homeowner assigned his/her/their policy rights over to Roof Pros, and in each claim, appraisal was sought after State Farm and Roof Pros could not agree on the amount of damages. The appraisal clause in each applicable State Farm policy stated that each party may select its own appraiser, the appraisers then must agree on an umpire, and if they cannot, then they may ask a judge to select the umpire. The parties could not agree as to an umpire, so petitions were filed for each claim in the lower courts, asking the courts to appoint an umpire in each matter. The lower courts ultimately entered final judgments confirming appraisal awards in each claim, and State Farm timely appealed. On appeal, State Farm took the position that the lowers courts lacked subject-matter jurisdiction to hear these cases as pleaded and to enter a final judgment because these actions did not seek damages, alleged no jurisdictional amount in controversy, and lacked the essential allegations to support a declaratory judgment or breach of contract action. The Fifth District Court of Appeal agreed, reversing the lower courts’ rulings. 
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Erika Cordovi, of our Miami office, obtained an order of dismissal in a Personal Injury Protection (“PIP”) suit due to the plaintiff’s failure to effectuate timely service of process on our client. The plaintiff exceeded the 120-day service requirement by one week and failed to request an extension of time or show good cause for the delay. With case law supporting her argument, Erika convinced the court to dismiss the plaintiff’s action against our client. 
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Kara K. Cosse, of our Jacksonville office, prevailed on summary judgment in a first-party property damage dispute. The defendant-insurer invoked its right to appraisal prior to plaintiff filing suit. Once suit was filed, several motions were filed and argued, including a motion disputing the venue of the case, a motion pertaining to untimely service of process, and a motion requesting to stay the case pending a criminal investigation against the plaintiff. The plaintiff argued the insurer waived its right to appraisal by litigating the case and participating in these various motions. Kara argued, and the court agreed, that the insurer properly demanded appraisal and that the litigation the insurer had participated in to date was administrative in nature, and thus the insurer did not act inconsistently with its right to appraisal. 
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Michael J. Carney, of our Ft. Lauderdale office, and Kara K. Cosse, of our Jacksonville office, secured a total defense verdict after a four-day trial in Volusia County in a first party property damage case. 
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Emily Huang of our Ft. Myers office, helped our insurer-client obtain a binding arbitration award in its favor. The insureds filed a property damage claim allegedly arising from Tropical Storm Gordon; however, the insurer denied the claim because the damage appeared to have resulted from Hurricane Irma at a time prior to when the insureds owned the home. The arbitrator found that, based upon the evidence, the denial was proper. 
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Nicole L. Wulwick, of our Miami office, prevailed on summary judgment in a late-notice Hurricane Irma claim. The plaintiffs-insureds admitted that they knew of roof damage as early as October of 2017, had it repaired, but never notified the defendant-insurer until nearly three years later. Additionally, the plaintiffs testified that they noticed moisture in the interior ceilings of several rooms in the home at least one year prior to reporting their claim. Both sides presented expert affidavits, but the court ultimately ruled in favor of the insurer, holding the loss was not covered as a matter of law. 
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Jonathan O. Aihie, of our Miami office, obtained a summary judgment in favor of our client in a first-party property case. The insured entered into an assignment of benefits (“AOB”) with a contractor, but the contractor failed to provide the signed AOB to the insurer within three days of its execution as required under section 627.7152(2)(a)3, Florida Statutes. Additionally, the contractor also violated subsection (9)(a) of the same statute by filing a premature notice of intent to litigate. The court held these violations invalidated the claim. 
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William A. Sabinson, of our West Palm Beach office, secured a summary judgment for our client, a property insurer, in a Hurricane Irma case. The insurer investigated the property damage loss, sent a reservation of rights letter, and paid for the damaged portion of the insured’s roof. The insurer requested she submit any estimates she received, but she forwarded nothing and, instead, sued. During her deposition, the insured testified she had no contact with anyone from the insurer during the handling of her claim. However, when the insurer moved for summary judgment, the insured submitted an affidavit arguing that the claims adjuster told her there was additional damage to her roof. Billy moved to have the affidavit stricken given that it contradicted the insured’s deposition testimony. The court agreed and ultimately granted summary judgment in favor of the insurer. 
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Eli M. Marger, of our Tampa office, obtained a summary judgment for our client in a case involving windstorm loss. Eli filed the motion with the court, and counsel for the insureds were late in submitting their response in opposition, which was accompanied by affidavits of the insureds and a general contractor. The court concluded the affidavits were untimely but still considered them. Eli argued that in addition to the affidavits being untimely, they were conclusory and provided no significant factual background, which made them insufficient under Florida law. The court agreed, striking the affidavits as untimely and legally insufficient, and granting summary judgment for the insurer. 
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Martin P. Blaya, of our Miami office, with the assistance of KD’s Appellate and Coverage Practice Group, convinced a court to enforce a settlement previously entered into by the plaintiff. The plaintiff argued that the settlement was invalid for two reasons: (1) she had not yet been named the personal representative of her father’s estate when the settlement was entered into in her name on behalf of her father’s estate; and (2) she did not authorize her prior attorney to enter into the settlement agreement and, therefore, the prior attorney had no authority to settle the claim. Importantly, regarding this second argument, the plaintiff invoked attorney-client privilege during her deposition, with the court sustaining those objections, making it impossible to discover what exactly the plaintiff may or may not have authorized her prior attorney to do with respect to settling the claim. Fortunately, the plaintiff’s prior attorney was not so tight-lipped, and he testified that he had the plaintiff’s express authority to settle the claim. At the hearing on the motion to enforce settlement, Martin argued that, under Florida law, the powers of a personal representative relate back in time to validate acts made by the person prior to being officially appointed. And sealing the fate of the plaintiff, Martin lastly argued that because the plaintiff invoked her attorney-client privilege—preventing the discovery of information that went to the heart of this dispute—the court was left to rely solely on the testimony of the plaintiff’s prior attorney, which supported the defendant’s position. The court agreed and granted the defendant’s motion to enforce settlement. 
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Congratulations to Kendra Therrell, Erin Johnston and Ben Carter on a favorable defense verdict on a rear-end auto (admitted liability) accident in Gainesville, Florida. Our team offered $100,000 before trial, Plaintiff’s demand was consistently $3,000,000 and they asked the jury for $8.4 million. The jury deliberated and came back with a $100,000 verdict, rejecting Plaintiff’s more than $300,000 in past medical damages including multiple injections, lumbar ablations, and a lumbar surgery.

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

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



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