In Hamilton v. Citizens Prop'y Ins. Corp., No. 3D23-1934 (Fla. 3d DCA May 1, 2024), Citizens procured a protective order allowing its corporate representative to use the claims file to refresh his recollection during his deposition without waiving any privilege or permitting the opposing party access to the materials for cross-examination.  On certiorari review, the Third District held that the protective order constituted a departure from the essential requirements of the law because it violated section 90.613, Fla. Stat. (2023), which requires parties to produce for inspection and cross-examination any "writing or other item" used to refresh a witness' memory while testifying.  The Court also held that the error created irreparable harm as there was no practical way to review the effect of the withheld materials on appeal.  In effect, a pre-deposition protective order of this type will not preserve a privilege.  Instead, a defendant should attempt to utilize a stipulation to preserve the privilege before allowing a corporate representative to rely on claim file documents during a deposition, or any privilege to will be waived. View full opinion here.
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In Allstate Ins. Co. v. Revival Chiropractic, LLC, 2024 WL 1776115 (Fla. April 25, 2024), Plaintiff argued that because the charge was less than 80% of 200% of the Medicare Fee schedule, Allstate was required to pay either 100% of the amount charged or 80% of 200% of the Medicare Fee Schedule, which was more than the amount billed.  The court ruled in Allstate’s favor and found that Allstate’s payment of 80% of the billed amount was not prohibited by the statute and allowed by the policy. The court reiterated its ruling in MRI Associates of Tampa, Inc. v. State Farm Mutual Automobile Insurance Co., 334 So. 3d 577 (Fla. 2021), in which it found that when an insurer has  a hybrid policy that both elects to pay at 80% of 200% of the Medicare Fee Schedule pursuant to §627.736 (5)(a),Fla. Stat., and also allows payment at 80% of the usual and customary amount pursuant to §627.736 (1), Fla. Stat., the insurer has the option to make payment under either method. Here, Allstate had a hybrid policy allowing both payment methods and also had added language stating: “If a provider submits a charge for an amount less than the amount determined by the fee schedule or other limitations established by Section 627.736 . . . or any other provisions of the Florida Motor Vehicle No-Fault Law . . . [Allstate] will pay eighty percent of the charge that was submitted.” Consequently, the court found the policy provides that Allstate will pay 80% of reasonable expenses and it expressly permits Allstate to pay 80% of the charges submitted. Nothing in the PIP statute invalidates the policy provisions authorizing such payments. Read more here.

How will this ruling affect current and future cases? Please contact us to discuss.
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In Arway v. Progressive American Insurance Company, 6D23-399 (Fla. 6th DCA March 1, 2024), the Sixth DCA reversed and remanded the trial court’s entry of summary judgment in favor of Progressive. Arway brought the underlying lawsuit to recover underinsured motorist (UM) benefits under a Progressive policy of insurance. Progressive argued, and the trial court ultimately agreed, that the five-year statute of limitations (SOL) ran from the date of the motor vehicle collision, thereby barring Arway’s suit. On appeal, the Sixth DCA focused on the subject policy’s exhaustion provision which required Arway to exhaust the tortfeasor’s bodily injury (BI) coverage prior to obtaining UM benefits under her own policy. Notwithstanding the exhaustion condition precedent, the subject policy also included a provision preventing Arway from filing suit against Progressive unless she was in full compliance with the policy terms—e.g., the exhaustion provision. The Sixth DCA, citing similar policy provisions in Woodall v. Travelers Indemnity Co., 699 So. 2d 1361 (Fla. 1997), held that the exhaustion and no-action provisions of Arway’s Progressive policy tolled the SOL until Arway received payment from the tortfeasor’s BI liability carrier. View the opinion here. 
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In Pitts v. Neptune, 1D2022-0960 (Fla. 1st DCA March 6, 2024), the plaintiffs sought certiorari review of the trial court’s order compelling plaintiffs to respond to the defendant’s financial bias discovery regarding the relationship between the plaintiffs’ law firm and what plaintiff referred to as their “hybrid expert/treating physicians.” Plaintiffs had refused to provide the discovery, citing Worley v. Central Florida YMCA, Inc., in which the Florida Supreme Court protected a lawyer’s referral of a client to a treating physician as a confidential attorney-client communication, and limited the discovery of the financial relationship between a non-party law firm and a plaintiff’s treating physician. In dismissing the plaintiffs’ petition, the First District observed that to the extent Worley remains good law post-tort reform, it applies to treating physicians, who testify as fact witnesses regarding their own medical performance on a particular occasion. By contrast, plaintiffs’ “hybrid” witnesses were acting as experts retained for trial. They were given litigation binders with medical records from the plaintiffs’ medical providers, and planned to testify based on their review of those records. The Court held this to be the work of an expert witness, not an ordinary treating physician, which brought the financial relationship between the witnesses and the plaintiffs’ law firm within the scope of discovery. The distinction between treating physicians and experts disguised as “hybrids”—which the Court based on the substance of the witness’ testimony rather than their label on the witness list—will be helpful for defendants seeking financial bias discovery. View the opinion here. 

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In NBIS Constr. & Transp. Ins. Servs., Inc. v. Liebherr-America, Inc., No. 22-14104 (11th Cir. Feb. 29, 2024), a magistrate judge considered a negligence claim for damages to a crane arising from the collapse of the crane boom.   The plaintiff argued that the defendant crane distributor was negligent for failing to properly train the plaintiff’s employees and failing to timely transmit a safety bulletin.  The defendant argued that the economic loss rule applied to preclude products liability actions when the product only damages itself. The magistrate ruled that the economic loss rule did not apply because the parties had stipulated that the crane was not defective.  Based on the stipulation, the magistrate concluded that the negligence action was not a products liability action but “an action alleging negligent services provided.”  On appeal, the defendant argued that the theories of negligence were essentially failure to warn claims, to which the economic loss rule had traditionally been applied. The Eleventh Circuit found merit in both positions and certified the following question: “Whether, under Florida law, the economic loss rule applies to negligence claims against a distributor of a product, stipulated to be non-defective, for the failure to alert a product owner of a known danger, when the only damages claimed are to the product itself?” View the opinion here. 
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Dismissal Affirmed When Assignment of Property Insurance Benefits Fails to Strictly Comply with § 627.7152(2)

 

In Gale Force Roofing & Rest., LLC v. Am. Integrity Ins. Co., No. 2D22-4104 (Fla. 2d DCA Feb. 16, 2024), the Second DCA considered whether dismissal of a complaint was proper based on the AOB’s failure to “[c]ontain a provision that allows the assignor to rescind the assignment agreement without a penalty or fee by submitting a written notice of rescission” as required by § 627.7152(2)(a)2, Fla. Stat. (2021) (emphasis added).  While the AOB contained some of these terms in different provisions, the Court concluded that its failure to contain a single provision setting forth each and every term made the AOB unenforceable.  Specifically, while the AOB allowed for rescission, it did not permit rescission by submitting “a written notice.”  And while it mentioned that rescission would be without a “penalty,” it did not also mention a “fee.”  This decision supports filing a motion to dismiss in property insurance cases filed by an assignee if the AOB does not contain a single provision parroting the exact wording of the statute. View the opinion here. 

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Split Among District Courts Regarding Whether Property Insurance Presuit Notice Requirement Applies Retroactively

In Cantens v. Certain Underwriters at Lloyd’s London, No. 3D22-0917 (Fla. 3d DCA Feb. 14, 2024), the Third District aligned itself with the Fourth District, holding that the presuit notice requirement for property insurance claims applies retroactively. The presuit notice requirement was added in section 627.70152(3)(a), Fla. Stat. (2021), which was effective on July 1, 2021.  The statute says it “applies exclusively to all suits arising under a residential or commercial property insurance policy.”  The Third District found that this language intended for retroactive application to policies issued before July 1, 2021.  The court also ruled that, because the statute was procedural in nature, retroactive application was constitutional.  In so doing, the court certified conflict with the Sixth District.  Circuit courts will be required to follow the precedent in their district, but the argument should still be preserved in the Sixth District. View the opinion here.

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In United Medical, LLC, a/a/o Roberto Prin v. Progressive Preferred Insurance Company, et al., No. 3D23-01 (Fla. 3d DCA Jan. 17. 2024), the Third District Court of Appeal reviewed an order granting an out-of-state insurer’s motion to dismiss based on a lack of personal jurisdiction under the test established in Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). The Court determined that Plaintiff met the first element of the test by alleging as a statutory basis for jurisdiction that the insurer was licensed to transact business in Florida and maintained agents there to do so.  However, the out-of-state insurer presented a legally sufficient affidavit averring that it was incorporated in and a resident of Ohio and did not conduct business in Florida.  Thus, the burden shifted to Plaintiff to produce an opposing affidavit or other sworn proof establishing the basis of jurisdiction.   The Third District held that Plaintiff “acted at its own peril“ by electing to rely on three website pages that did not refute the sworn affidavit, obligating the trial court to grant the motion to dismiss. View the full opinion here. 
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In United Automobile Insurance Company v. ISO-Diagnostics Testing, Inc., No. 4D2022-1735 (Fla. 4th DCA Jan. 10. 2024), the Fourth District Court of Appeal held that the term “year” as it appears in Florida’s No-Fault Statute, section 627.736, refers to a service year and not a calendar year. Importantly, while the Florida Legislature made this clear in its 2015 amendment to section 627.736(5)(a)2, replacing the term “year” with “service year” and defining it as “the period from March 1 through the end of February of the following year,” the Fourth District explained that even prior to the Legislature’s 2015 amendment, the Legislature intended the word “year” to mean a service year beginning on March 1. The Fourth District reasoned that although the Legislature had not previously used the term “service year” or defined that term in the Statute, it still referred to the March 1 date, supporting the plain meaning to be that a service year—not a calendar year—applied. View full opinion here. 
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In Arce v. Citizens Property and Casualty Insurance Corporation, No. 3D22-0722 (Fla. 3d DCA Jan. 3, 2024), the Third District Court of Appeal (DCA) affirmed summary judgment in favor of Citizens, holding it was prejudiced by the nearly three-year-late filing of a Hurricane Irma claim. In doing so, the Court rejected the holding in Perez v. Citizens Property Insurance Corporation, 345 So. 3d 893 (Fla. 4th DCA 2022), which created a “policy language exception” to the well-established Florida rule that an insurer is entitled to a rebuttable presumption that it was prejudiced by the untimely reporting of a claim, holding instead that since Citizens’ policy language in its “Duties after Loss” provision incorporates the term “prejudice,” the burden is Citizens’—not the insureds—to prove Citizens was prejudiced. The Third DCA soundly rejected the holding Perez, calling it “counterintuitive” and explaining it “upends the commonsense notice/presumption framework that has evolved from years of practical application.” It has certified conflict with Perez. 

For more information, see the opinion here. 
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In Patios West One Condominium Association, Inc. v. American Coastal Insurance Company, No. 3D22-1895 (Fla. 3d DCA Jan 3, 2024), the Third District Court of Appeal (DCA) reversed and remanded a trial court’s order denying an insured’s motion to compel appraisal on the grounds that the insured’s notice of supplemental or reopened claim was legally insufficient since it failed to incorporate an estimate for damages. In reversing the order, the Third DCA explained that neither section 627.70132, Florida Statute, nor the insurer’s policy language expressly require an insured to submit any such estimate with its notice of a supplemental or reopened claim. It further held the facts in Goldberg v. Universal Property and Casualty Insurance Company, 302 So. 3d 919 (Fla. 4th DCA 2020), were distinguishable, explaining the Goldberg requirement that an estimate be submitted with a notice of supplemental or reopened claim is nothing more than dicta, and to the extent that this was the holding in Goldberg, it ignores the plain language of section 627.70132

For more information, see the opinion here. 
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We are thrilled to announce that Marlene DeTour, one of our regional managers, has been honored with the CFCALA Presidents' Council Award for Professionalism. This accolade stands as a testament to Marlene's dedication and proficiency in legal administration, and we take great pride in having her as a vital part of our team.

Please join us in extending our heartfelt congratulations to her!

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In Citizens Property Insurance Corporation v. Salazar, No. 3D20-0367 (Fla. 3d DCA Oct. 4, 2023), the Third District Court of Appeal reversed a final judgment entered against Citizens and held that the trial court erred in denying Citizens’ motion to limit damages to the actual cash value (“ACV”) of directly-damaged property. The claim arose from a kitchen sink leak. Citizens calculated and paid the ACV as required under Florida Statute 627.7011(3)(a). The insured completed repairs for an amount less than the estimated ACV and never provided Citizens with receipts showing the completion of those repairs. Instead, she submitted an estimate over eight times higher than Citizens’ original estimate, including matching costs, which are not considered ACV-related damages. On appeal, the Third District agreed with Citizens, remanding the case for a new trial and explaining that the admission of the homeowner’s estimate into evidence at trial was improper since the homeowner had not proven her covered (ACV-related) damages exceeded the amount already paid by Citizens.

Read the full opinion here.
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Jonathan Aihie of our Miami office, joined NAAIA Florida in the Step Out Walk Event in Fort Lauderdale to raise money and awareness to support the American Diabetes Association and to celebrate National Hispanic Heritage Month. NAAIA Florida raised over $5,000.00 to support the ADA and the NAAIA Florida Scholarship. We are proud of Jonathan and his efforts to support this important cause.
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In Universal Property & Casualty Insurance Co. v. Navlen, 4D2022-1590, the Fourth District reversed the trial court’s order denying Universal’s motion to strike the insureds’ expert witness and remanded for a new trial, holding that the expert’s reliance on experience and personal knowledge to form his opinion didn’t pass muster under the Daubert standard codified by Section 90.702, Florida Statutes. The case arose out of the insureds’ claim for wind damage to their roof, which Universal concluded fell below the policy deductible. Before trial, Universal moved to exclude the insured’s expert  he testified at deposition that he did not inspect the insured’s roof before it was replaced, formed opinions based on inspecting neighboring roofs, took no position about the percentage of the roof that was damaged, relied on wind speed measurements taken 17 miles from the property, based his opinion on “Benchmark” data that was not included in his report, and could not rule out other causes of the roof damage. The appellate court concluded the expert’s opinion didn’t satisfy Daubert because the insureds did not offer any independent corroboration that the “Benchmark” data, which the expert claimed he used “all the time,” was sufficiently reliable. Similarly, the court faulted the expert for failing to conduct any calculation or use any other method to support his opinion that more than 25% of the roof was damaged, noting that he merely “guestimated” based on reviewing photos. The opinion reinforces the adage that while an expert may rely on experience and personal knowledge in forming an opinion, they must establish how the experience led to their conclusion, why the experience is a sufficient basis for the opinion, and how the experience was reliably applied to the facts. 

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

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

Read the full opinion here. 
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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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Florida 4-Hour Law and Ethics Update
May 9, 2024 | 10:00 a.m. EST

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

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

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

For registration information, contact info@kubickidraper.com.

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When Claims Are Moldy: Understanding, Assessing and Litigating Mold-related Issues in Property Claims

For registration information, contact info@kubickidraper.com.

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February 22, 2024 | 10:00 a.m.

Florida 4-Hour Law and Ethics Update 

Presenters: Michael Carney | Jason Friedman | Hillary Lovelady | Charles Watkins 

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

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

 

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Human Nature - The Benefit of the Human Factors Expert

January 16, 2024 | 1:00 p.m. EST

In this presentation, our team will delve into the practical side of how human factors experts play a crucial role in addressing negligence claims. They’ll walk you through the decision-making process, help you understand when a human factors expert is beneficial, and explore how they navigate claims for the best results. The team will also touch on the current legal context and Daubert considerations. Join us for a great discussion about the world of human factors expertise!

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Traumatic Brain Injury Litigation

December 5, 2023 | 12:00 pm EST

TBI claims have surged in recent years, with a mix of valid and questionable cases. This presentation will uncover the true nature of TBI injuries, offering insights into distinguishing genuine claims from dubious ones and providing strategies for their defense.

For registration information, contact us at info@kubickidraper.com. 
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KD Construction Conference | November 3, 2023

KD's Construction Practice Group is excited to invite you to a groundbreaking event that will revolutionize your approach to construction claims!

Whether you're a seasoned professional looking to refine your skills or someone new to the construction claims arena, our virtual construction conference promises to be a day filled with valuable insights and practical knowledge to boost your expertise in the field by reviewing the latest industry trends, innovations, and strategies.

Register today to secure your spot for one, some, or all of our upcoming construction presentations on November 3!

To register, email us at info@kubickidraper.com.

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Florida 4-Hour Law and Ethics Update

November 8, 2023 | 10:00 a.m. EST

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

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

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

For registration information, email info@kubickidraper.com.

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October 26, 2023 | 12:00 - 1:00 p.m. EST

OSHA: Investigation, Application and Detection of Fraud in First Party Property Estimates and Admissibility at Trial
Presenters: Sarah Goldberg and Barbara Fox

This class will discuss common OSHA requirements, how they are included in first party property estimates and how to identify and handle fraud in estimates based on OSHA requirements.

All courses are complimentary for insurance professionals and are approved by the Florida Department of Financial Services for continuing education credit.

For registration information, email us at info@kubickidraper.com.
 

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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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IN THIS KDQ ISSUE:

• News & Announcements
• Legal Updates
• KD in the Community
• Spotlight: Meet Michael Suarez
• Hispanic Heritage
• First Party Conference Recap
• First Party Conference Part II - Program Info
• Construction Conference
• Presentations & Speaking Engagements
• Recent Results
• In Loving Memory: Karleen Turchin
• KD Team Updates
• Contact Us

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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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Brea Dearing and Kendra Therrell, from our Jacksonville office, successfully obtained a defense verdict in an Alachua County auto accident trial where liability was disputed. The plaintiff claimed her vehicle was totaled, alleging permanent neck and back injuries necessitating lifelong treatment. Defense countered by revealing the plaintiff's pre-existing chronic pain, previously denied, portraying her as an unreliable witness. Despite the plaintiff seeking over $2 million, the jury awarded only past medical expenses, determining no permanent injury. Post-trial motions led to a zeroed-out judgment via a stipulation triggered by the expired Proposal for Settlement.
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In McKee v. Crestline Hotels & Resorts, LLC, No. 4D2022-3428 (Fla. 4th DCA Jan. 10, 2024), Kubicki Draper’s own Sharon C. Degnan argued—and the Fourth District Court of Appeal held—that an employee was not engaged in the course and scope of employment when he struck two pedestrians while driving his personal vehicle home and, around that same time, used his personal cell phone to make what might have been a work-related phone call. In holding the driver’s employer was not vicariously liable for the employee’s conduct at the time of loss, the court applied the vicarious liability test outlined in Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74, 76 (Fla. 3d DCA 1990), concluding that the “act of using a personal cellular phone while driving home from work is not the kind of act [the employee] was hired to perform,” nor was driving or using a personal cell phone an integral part of the employee’s job. The court explained that “[t]he cost of negligence in such circumstances should be imposed on the owner or operator of the vehicle—not the employer.” See the full opinion here. 

For more information about this case and/or to discuss similar matters, do not hesitate to reach out to Sharon C. Degnan at (407) 419-3812 | scd@kubickidraper.com.
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Kendra Therrell and Erin Johnston of our Jacksonville office tried an admitted liability contested damages 5-day UM trial in Duval County, a known volatile venue for insurance carriers. The at-fault driver was still a party to the case but was absent from the courtroom most of the week, leaving an empty chair. Numerous motions and objections were made before and during the trial to combat the Plaintiff’s improper arguments and comments, particularly regarding UM coverage and insurance. The trial lasted all five days. After 3 hours of deliberations, the jury returned a verdict for an amount within the UM policy limits, lower than our last offer, and a finding of no permanency.
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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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