May 25, 2023
In Wolf v. Peter M. Hashaby, P.A., the Fourth District overturned the entry of a default final judgment because the defendants demonstrated excusable neglect, meritorious defenses, and due diligence. The trial court found that defendants failed to demonstrate excusable neglect for their attorney’s failure to attend a case management conference based on the history of the case, which included a previous default. In addition, despite having filed an answer that included 23 affirmative defenses, the trial court found that defendants had not demonstrated the existence of meritorious defenses. The Fourth District disagreed and held that the attorney’s affidavit adequately demonstrated excusable neglect and that the affirmative defenses established meritorious defenses. Read more here.
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May 24, 2023
Jonathan Aihie, Erika Cordovi, Gregory Prusak, Anthony Atala, Barbara Fox, Yvette Pace, and Michael Carney recently helped judge Miami Carol City Senior High School Law Magnet Program’s mock trials. For several years now, the KD team has enjoyed assisting the students and providing tips on how to succeed in the legal profession.
Mentoring matters to us in-house and out in our community -- we are proud to have team members that step up for important events like these that influence and help future stars.
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May 16, 2023
We are proud to announce Stephen Cozart, of our Pensacola office, was voted into the Northwest Florida Chapter of the American Board of Trial Advocates (ABOTA). ABOTA is an invitation-only organization dedicated to promoting and improving the American civil justice system and to preserving the Seventh Amendment right to civil jury trial. We are happy to have yet another KD member join this important group. Congratulations, Steve!
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May 16, 2023
Valued Policy Law (VPL) claims in Florida have increased significantly. These claims involve alleged total losses to property caused by events such as fire, lightning, wind or even floods.
Valued Policy Law is intended to fix the measure of damages payable to the insured in case of total loss to property. Florida Statute 627.702 provides that when any building or structure sustains a total loss as a result of a covered peril, the liability for said loss shall be the amount of money for which the property was insured. This applies to building coverages, but does not apply to other structures, personal property claims, additional living expenses, or ordinance and law coverage. Florida’s Valued Policy Law is not intended to expand coverage or to deprive insurers of any defenses available to it via the policy of insurance.
When analyzing whether Valued Policy Law applies to a property insurance claim, it is important to carefully evaluate the policy language regarding covered and excluded perils. Contact our First Party Property Group for assistance with any residential and/or commercial questions, firstpartyproperty@kubickidraper.com.
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May 5, 2023
May is Asian American and Pacific Islander Heritage Month, and as part of KD’s commitment to DEI, we are sponsoring The Asian Pacific American Bar Association of South Florida’s first annual Legal-Business Nexus recognizing Asian American Excellence in Florida. The event is set to take place May 16 at 6:00 p.m. in the Broward County Bar Association building in Ft. Lauderdale, Florida.
We invite you to join us and/or learn more about this first-of-its-kind celebration honoring notable legal and professional Asian Pacific American elites across the State, HERE.
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May 2, 2023
In recognition of Mental Health Awareness Month and its importance, the KD team is being invited to participate in a variety of activities that focus on creating positive habits to support mental health. The activities include meditation and breathing exercises to help reduce stress and increase memory and mental clarity.
We invite everyone to join us and pause to do things that help improve both physical health and mental health – just a few minutes count in a big way. For helpful self-care tips, visit: https://www.nimh.nih.gov/health/topics/caring-for-your-mental-health.
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May 1, 2023
It’s that time again! National Hurricane Preparedness Week started yesterday and although forecasters predict a “slightly below average” hurricane season, being prepared is always key. We have included some tips and helpful links to help you prepare:
Know your zone so you know when to evacuate, if necessary
Take inventory of your personal property and review your insurance policies
Take steps to protect your home and business
Hurricane Safety Tips and Resources from the National Weather Service
If you are an insurance professional, remember to check your license status and ensure you have met all of your CE requirements, so your license is in good standing and is active. If you need credits, we welcome you to join our upcoming webinars announced on here on our website and on our LinkedIn, Instagram and Twitter profiles. We are also happy to schedule a private complimentary webinar for you and your team. To learn more about our presentations and/or to be added to our invite list, contact us at info@kubickidraper.com.
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May 1, 2023
April 27, 2023
In Progressive Select Insurance Company v. In House Diagnostic Services, Inc., a/a/o Darryl Frazier, No. 4D21-2581 (Fla. 4th DCA April 26, 2023), the Fourth District concluded that the proper reimbursement rate under the Florida PIP Statute—section 627.736(5)(a), Florida Statutes (2013)—must be calculated using the 2007 Medicare Part B non-facility participating price, as opposed to the higher 2007 Medicare Part B non-facility limiting charge, which the Third District approved in Priority Medical Center, LLC. a/a/o Susan Boggiardino v. Allstate No., 319 So. 3d 724 (Fla. 3d DCA 2021), and the Fourth District previously adopted in Allstate Fire & Casualty Insurance Co. v. Jeffrey L. Katzell, M.D., P.A., 323 So. 3d 191 (Fla. 4th DCA 2021). In receding from Katzell, the Fourth District accepted the insurer’s argument that the Medicare limiting charge does not function as a fee schedule; rather it is a term Medicare defines as an amount a provider may bill if said provider does not accept assignments of Medicare claims. The Fourth District also found that utilizing Medicare limiting charges in calculating reimbursement in the context of section 627.736(5)(a) is erroneous based on the statute’s language. For more information, see the Court’s opinion.
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April 26, 2023
Thanks to our dedicated, highly-skilled work family, we can provide our clients the best service possible. We hope today especially, our team knows how very much their work is valued, and how very much they are appreciated.
Thank you Team KD, for your support and the many contributions you make to our success every day.
We wish you and all hard-working professionals out there, a wonderful day!
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April 25, 2023
Our Miami office celebrated Earth Day this past weekend with Miami-Dade County Parks, Recreation and Open Spaces. The team volunteered to clean Kendall Indian Hammocks Park and helped remove invasive vines growing throughout the park. To learn more about volunteer opportunities with Miami-Dade County Parks, visit https://miamidadeparks.com/FL/miami-dade-county-parks-recreation/catalog?filter=c2VhcmNoPTEyOTEzNzM=.
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April 18, 2023
The fabric of our Nation is sewed together from many different threads and cloths, the final product is constantly evolving -- as it should be. This makes us strong, it makes us unique, it brings challenges. Overcoming the challenges, gives us purpose and matchless greatness.
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April 17, 2023
KD is proud to have once again sponsored a scholarship for the Miami Dade Florida Association for Women Lawyers (MDFAWL) Scholarship Program. Some of our Miami attorneys: Alexandra Caraballo, Samantha Joseph, Karenny Montan, and Nicole Wulwick, recently attended MDFAWL’s Women Making History Award and Scholarship Reception in support of KD’s recipient this year: Amanda Hernandez, a 2nd year law student at St. Thomas University in Miami, Florida. We are proud to support an organization that focuses on promoting the advancement of women in legal professions and invite you to learn more about the organization and its scholarship program here: https://www.mdfawl.org/.
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April 7, 2023
Maegan Bridwell, Tracie Reese and Paulette Brown, of our Tampa office, represented KD at Stetson Law’s Inaugural Career Fair earlier this week. The fair offered a new platform for law firms, legal employers and students to connect, and our team had a great time engaging with students and offering them valuable insight to assist with the transition from campus to career.
Our summer program provides opportunities to participate in a broad and exciting range of legal work. Contact us today, for more information!
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April 5, 2023
Congratulations to Jane Rankin, who has continuously earned Martindale-Hubbell’s AV Preeminent Rating for the past 25 years! This rating is awarded to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers. For more information about Martindale-Hubbell and its ratings, visit: https://www.martindale.com/ratings-and-reviews/.
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April 3, 2023
Governor Ron DeSantis signed House Bill 837 into law on March 24, 2023, enacting sweeping changes to civil litigation in the state. The new law touches on issues ranging from attorney’s fees to negligence standards to bad faith claims, and applies to all claims that accrue after the law’s March 24, 2023 effective date. For evidence of the impact these changes are expected to have, one need look no further than new case filings across the state. In the weeks leading up to the law’s passage, approximately 100,000 new suits were filed, which is over three-quarters of the number of filings since the first of the year. We have been monitoring the progress of this law closely, and summarize the major changes and their potential impacts below.
Fees, fees, fees.
Perhaps no issue received more attention as the bill progressed through the legislature than its effect on attorney’s fees claims. Florida has long been known for its “one way” attorney’s fees statutes, which required courts to award attorney’s fees to an insured when they prevailed in an action against their insurer. Fee claims are much more limited under the new law, as it repeals these statutes, §627.428 and §626.9373, in their entirety. However, the law also creates a new statute providing that the Offer of Judgment statute, §768.79, applies in civil actions involving insurance contracts. And, it adds a provision to Florida’s Declaratory Judgment Act, providing for an award of fees to an insured who obtains a declaratory judgment determining coverage in their favor, but only when the insurer has totally denied coverage. Importantly, a defense offered under a reservation of rights is not considered a denial, the fee claim is non-transferable, and the statute does not apply to actions arising under residential or commercial property insurance policies. Several other statutes were amended to reflect the repeal of §627.428 and §626.9373, most notably §627.756, which addresses attorney’s fees claims in certain construction disputes. That statute now independently provides for an award of fees against surety insurers in actions brought by owners, contractors, subcontractors, laborers, or material men under payment or performance bonds.
The law also changes the way attorney’s fees awards are calculated in contingency fee cases. Previously, Florida courts have applied “contingency fee multipliers” based on the likelihood of success at the outset of the case. Under the new law, there is a “strong presumption” that the lodestar fee—which is based on the number of attorney hours reasonably expended on the matter multiplied by the reasonably hourly rate—is a sufficient and reasonable award. Multipliers are now limited to “rare and exception circumstances” where competent counsel could not be otherwise retained.
New rules for negligence claims.
Previously, under Florida’s “pure” comparative negligence scheme, defendants were required to pay damages based on their percentage of fault in causing harm to the plaintiff. The new law institutes a “modified” comparative negligence standard, which bars recovery if a plaintiff is found to be more than fifty-percent negligent. This provision is expected to reduce the number of cases brought in which the plaintiff was a significant contributor to their own injuries.
The law also creates new liability standards for certain negligence cases. One important change is in premises liability actions where the plaintiff was harmed by the criminal act of a third party. Previously, third parties could only be placed on the verdict form for apportionment of fault if their action constituted negligence. Thus, a third party criminal who injured or killed an invitee, guest, or tenant on a landowner’s property could not be deemed “at fault” in a resulting civil negligence action. Under the new law, the fact finder will be required to consider the fault of all parties who contributed to the injury, including the criminal themselves. This means the criminal third party can be apportioned a percentage of fault as a Fabre or third party defendant, or even potentially defaulted on liability.
In negligent security claims, the new law creates a presumption against liability for the owner or operator of a “multifamily residential property” in connection with criminal acts committed on the property by third parties, if the owner or operator demonstrates “substantial compliance” with certain security measures designated by the statute. These measures include periodic crime assessments and crime and safety training for employees, as well as equipping the property with security cameras, lighted parking lots and other common areas, deadbolts and locking devices on dwelling doors and windows, peepholes, and locked gates along pool fence areas. This change will provide a potent defense where the property owner can demonstrate their compliance with the statute.
Finally, the law shortens the statute of limitations for negligence actions from four years to two years. This shortened timeline is expected to cause plaintiffs to evaluate and file their claims sooner, increase the ability to obtain evidence and testimony, and create incentive to settle where liability is contested. However, it only applies to claims accruing after the law’s effective date. This means the date of injury will be important in evaluating new negligence lawsuits, as injuries occurring prior to March 24, 2023 will generally be subject to the old four-year timeframe.
Medical expenses and letters of protection.
Several recent cases, including from the Florida Supreme Court, have addressed the issue of the proper measure of a plaintiff’s recovery for past and future medical expenses where full amount of the plaintiff’s bills were satisfied for a lesser amount. Until now, plaintiffs were generally permitted to introduce the full amount of their medical bills into evidence, without consideration of what was actually paid. Adjustments or reductions were addressed via post-trial setoffs, except in cases involving Medicare or Medicaid, in which only the amount actually paid to the medical provider was admissible. Some opinions expressed discomfort with this system, finding it incompatible with the principal that compensatory damages should address losses the plaintiff actually sustained.
Under HB 837, plaintiffs will be limited to introducing evidence of the amount actually paid to satisfy their medical bills, regardless of who paid. If the plaintiff has health coverage, evidence of the amount that the insurer paid the provider will be admissible. If the plaintiff has health coverage but opts to obtain treatment under a letter of protection, evidence of the amount the plaintiff’s insurer would have paid is admissible, plus reasonable amounts billed to the plaintiff for medically-necessary treatment. If the plaintiff does not have health coverage, or has coverage through Medicare or Medicaid, evidence of 120% of the applicable Medicare rate is admissible. And, if there is no applicable Medicare rate, evidence of 170% of the state Medicaid rate is admissible.
Future medical expenses will also factor in the plaintiff’s available health coverage. If the plaintiff has coverage other than Medicare or Medicaid, evidence of the amount the insurer would pay for future treatment, plus the plaintiff’s reasonable share, is admissible. If the plaintiff does not have health coverage, or has Medicare or Medicaid, evidence of 120% of the applicable Medicare rate is admissible. And, if there is no applicable Medicare rate, evidence of 170% of the state Medicaid is admissible.
On a related point, where a plaintiff receives treatment under a letter of protection, the letter must be disclosed, as must all bills for medical expenses. The bills must be itemized and coded according to whether the provider is billing at a provider level, a facility level in a clinical or outpatient setting, or a facility level in an inpatient setting. The sale of a plaintiff’s account to a third party must also be disclosed, including the dollar amount. Most notably, where the plaintiff is referred by their attorney for treatment under a letter of protection, that referral must be disclosed, along with the relationship between the attorney and the medical provider, as relevant to the issue of bias of the provider. This provision overturns the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Association, Inc., 228 So. 3d 18 (Fla. 2017), under which the referral relationship between plaintiff’s attorneys and providers was protected by attorney-client privilege.
New standards for bad faith claims.
Last, but certainly not least, HB 837 makes multiple changes to Florida’s bad faith law. The law creates a safe harbor for bad faith liability where a liability insurer tenders the lesser of its policy limits or the amount demanded by the claimant within 90 days of receiving actual notice of the claim and sufficient evidence to support the amount of the claim. The existence of this safe harbor period is inadmissible in an action seeking to establish bad faith, and, if the insurer does not tender in that time period, the statute of limitations is extended for 90 days.
Next, the law establishes that an insurer’s negligence alone is insufficient to establish bad faith. And, the law imposes a duty on the insured, claimant, and any representative to act in good faith in furnishing information, making demands of an insurer, setting deadlines, and attempting to settle a claim. The fact finder will now be able to consider any bad faith conduct of the insured, claimant, or their representatives in assessing bad faith damages.
Where an insurer faces competing demands from multiple third parties arising from a single occurrence which in total exceed policy limits, the insurer can insulate itself from bad faith liability by filing an interpleader action or arbitration. In an interpleader action, if the third-party claims are found to be in excess of the policy limits, the claimants are entitled to a prorated share of the limits as determined by the trier of fact. Importantly, the filing of an interpleader action does not alter the insurer’s duty to defend. Similarly, in an arbitration, the insurer is required to make the full policy limits available for payment to the competing claimants, who would have their claims determined by a qualified arbitrator based on the comparative fault, if any, of the claimants, and the total likely outcome at trial based on the total of economic and noneconomic damages.
The implications of the new law are far reaching. Many of the issues touched upon here will undoubtedly result in litigation and appeals.
For more information or discussion, do not hesitate to contact us at appellateandcoverage@kubickidraper.com.
For more information or discussion, do not hesitate to contact us at appellateandcoverage@kubickidraper.com.
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March 17, 2023
The House and Senate have been in regular communication and negotiations to move each chamber’s bill forward concurrently. While each chamber thus far has adopted varying language, as of this week, the bills have begun to narrow and mirror each other substantially. Specifically, each chamber’s bill has identical portions regarding bad faith and attorney’s fees.
Fla. Stat. 624.155 – bad faith provisions
The proposed changes state an insurer cannot be liable for bad faith with respect to a liability insurance claim if the insurer tenders the lesser of the policy limits or the amount demanded by the client within a certain period of time after receiving notice of the claim. Both chambers have agreed that this time period will be set at 90 days.
Additionally, the bills also would change Fla. Stat. 624.155 to state that negligence alone is insufficient to constitute bad faith, that a court can adjust a damages award if a third-party claimant or insured does not act in good faith, and that an insurer does not commit bad faith by failing to pay multiple competing claims arising out of one accident—even if those claims’ total exceeds the policy limits—so long as the insurer within 90 days either files an interpleader action or makes the full policy limits available before an arbitrator is selected.
Fla. Statutes 627.428 and 626.9373 – Attorney’s Fees
The proposed changes would fully repeal both of these statutes. However, they create a new section to Chapter 86, Fla. Stat., which creates a right of action for declaratory relief to determine insurance coverage only after denial of a claim.
Enactment
These changes would only effect prospective claims arising after the enactment date.
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Fla. Stat. 624.155 – bad faith provisions
The proposed changes state an insurer cannot be liable for bad faith with respect to a liability insurance claim if the insurer tenders the lesser of the policy limits or the amount demanded by the client within a certain period of time after receiving notice of the claim. Both chambers have agreed that this time period will be set at 90 days.
Additionally, the bills also would change Fla. Stat. 624.155 to state that negligence alone is insufficient to constitute bad faith, that a court can adjust a damages award if a third-party claimant or insured does not act in good faith, and that an insurer does not commit bad faith by failing to pay multiple competing claims arising out of one accident—even if those claims’ total exceeds the policy limits—so long as the insurer within 90 days either files an interpleader action or makes the full policy limits available before an arbitrator is selected.
Fla. Statutes 627.428 and 626.9373 – Attorney’s Fees
The proposed changes would fully repeal both of these statutes. However, they create a new section to Chapter 86, Fla. Stat., which creates a right of action for declaratory relief to determine insurance coverage only after denial of a claim.
- In doing so, the court shall award attorneys fees to the named insured, omnibus insured, or named beneficiary under the policy at issue upon rendition of a declaratory judgment in their favor.
- Additionally, this right would not be transferrable, assignable, or acquired by any other manner by anyone other than a named or omnibus insured or a named beneficiary.
- Explicitly stating that a defense by insurer of reservation of rights does not constitute denial of claim.
Enactment
These changes would only effect prospective claims arising after the enactment date.
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March 8, 2023
Today, is International Women’s Day, a day celebrated around the world to mark and recognize the achievements of all women. This year’s theme is #EmbraceEquity.
“You Define Success…Together, We Achieve It,” Kubicki Draper’s motto, could not be more well-suited for this global day celebrating the social, economic, cultural, and political achievements of women. Our firm is committed to promoting a culture that creates opportunities for women and supports their professional endeavors. Proudly, Kubicki Draper is led by an Executive Board, half of which are women. 75% of our employees are women, 56% of our attorneys are women, and 54% of our shareholders are women. Our firm would not be what it is today without you – THANK YOU!
I am honored to share some of our leaders’ voices about this important and reflective day over the next few weeks. -Brad McCormick, Firm President, Executive Board Member and Equity Partner
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March 6, 2023
January 12, 2023
This presentation focused on the duties owed to guests, the potential tort claims that may arise and the potential defenses that may be available. Below are some quick tips to remember when handling theme park claims.
- Start the investigation early – it may be difficult to track down key witnesses years later. Even if you are unable to secure surveillance footage of the incident, someone may have captured footage on a cell phone video which could be critical to your defense!
- Check on plaintiff’s legal status at the time of the incident. Plaintiff's legal status dictates the duty owed to them by the theme park.
- Courts have moved away from applying a heightened duty onto theme parks; duty should be assessed the same way in these factual scenarios as it is assessed in any other premises liability cases.
- When a lawsuit involves a theme park ride, the courts in Florida dive into each case’s individual facts and really analyze the nature, construction, and operation of the ride itself that allegedly caused the injury.
- The courts have consistently held that the care required by a park must correspond with the risk involved.
- Whether reasonable care was exercised, is a question of fact for the jury.
If you have any questions about this presentation and/or would like to discuss a specific theme park claim issue, our team is ready to assist: premises@kubickidraper.com.
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