September 25, 2023
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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September 25, 2023
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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September 25, 2023
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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September 20, 2023
In Heritage Property & Casualty Insurance Company v. Wellington Place HOA, Inc., No. 4D2022-2749 (Fla. 4th DCA September 13, 2023), the Insureds claimed roof damage following Hurricane Irma. The Insurer provided coverage for the loss but did not settle or close the claim. The Insureds later sought payment for additional roof damage and damage to windows and doors. Following the Insurer’s failure to settle the claim, the Insureds filed suit and the trial court granted the Insureds’ motion to stay litigation and compel appraisal. On appeal, the Insurer argued that appraisal is not ripe, as the subsequently reported damage constituted a re-opened claim or supplemental claim for which coverage had yet to be determined. In affirming the trial court’s order, the Fourth DCA held that absent policy language requiring further coverage determinations, where an insurer admits a loss is covered and proceeds to hold the claim open for further adjustment, a dispute regarding additional or supplemental damage under the claim is one concerning the amount of loss which is ripe for appraisal.
Read the full opinion here.
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September 19, 2023
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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August 16, 2023
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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August 16, 2023
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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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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July 3, 2023
In People’s Trust Ins Co v. Kidwell Group LLC, Case No. 4D22-1314 (Fla. 4th DCA Jun. 28, 2023), involving a hurricane damaged roof, the homeowner obtained an engineering report on cause and extent of damages in exchange for an assignment of benefits. After the insurer admitted a covered loss and settled, the homeowner repaired his roof and the report was not used in the project. The insurer then refused to pay the assignee’s invoice for the report, giving rise to the case.
On appeal, the Fourth DCA reversed, finding that the insurer’s motion for directed verdict should have been granted. It found that evidence presented at jury trial demonstrated that the engineering report was not a “cost to repair or replace” the roof under the policy’s loss settlement provision. Further, reversal was warranted based on erroneous jury instructions and verdict form. To read full opinion, click HERE.
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June 30, 2023
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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June 27, 2023
In Savoy v. American Platinum Property & Casualty Ins., 2023 WL 4095772 (Fla. 4th DCA Jun. 21, 2023), the Fourth DCA reversed summary judgment for the insurer in a homeowners’ breach of policy case, finding the trial court erred in relying on a deficient affidavit. The insurer relied upon its corporate representative’s affidavit, which attached communications between the field adjuster, public adjuster and homeowners. However, the affidavit did not indicate any basis for the corporate representative’s knowledge of statements about the claim or his employment.
On appeal, the Fourth DCA reiterated that corporate representative affidavits supporting summary judgment are not excepted from the personal knowledge requirement. The affiant provided no basis for personal knowledge or competency as he stated he reviewed the insurer’s file, but did not claim knowledge of its recordkeeping practices and merely restated elements of the business records exemption in a conclusory manner. The Fourth DCA held that the affidavit and attached documents should have been disregarded by the trial court as it failed to satisfy the requirements to be used to support a motion for summary judgment. Read more HERE.
On appeal, the Fourth DCA reiterated that corporate representative affidavits supporting summary judgment are not excepted from the personal knowledge requirement. The affiant provided no basis for personal knowledge or competency as he stated he reviewed the insurer’s file, but did not claim knowledge of its recordkeeping practices and merely restated elements of the business records exemption in a conclusory manner. The Fourth DCA held that the affidavit and attached documents should have been disregarded by the trial court as it failed to satisfy the requirements to be used to support a motion for summary judgment. Read more HERE.
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June 26, 2023
We are pleased to congratulate this year’s Florida Super Lawyers and Rising Stars!
Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis and to be selected, peer nominations and evaluations are reviewed and combined with independent research. To learn more, visit: https://www.superlawyers.com/
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June 22, 2023
1. Investigate: Remember to send the "120-day" letter to the injured worker if you need more time to investigate.
2. Document: Documentation is key in defending the position that the authorized treatment was provided in a reasonable timely manner.
3. Consult: If questioning medical necessity and/or causal relationship of the recommended medical treatment from an authorized provider, speak with the authorized provider regarding the basis of the recommendation to assist your decision-making regarding that specific treatment.
Questions about a claim you are handling? Contact our experienced workers’ compensation team for assistance: workerscomp@kubickidraper.com.
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June 15, 2023
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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June 14, 2023
In First Acceptance Insurance Company, Inc. v. At Home Auto Glass, LLC a/a/o Petra James, Case No. 6D23-1192, 2023 WL 3910577 (6th DCA June 9, 2023), the Sixth DCA reversed the denial of an insurer’s motion to compel appraisal in an auto glass case. Following an assignment of benefits, At Home Auto Glass, LLC brought suit against First Acceptance Insurance Company after it issued payment based on prevailing competitive price. The insurer invoked the policy’s appraisal clause. However, agreeing with At Home’s interpretation of the terms “loss” and “amount of loss” as limited to physical damage, the trial court denied the insurer’s motion to compel appraisal.
The Sixth DCA found that At Home’s interpretation of the term “amount of loss” as limited to extent of physical damage was unreasonable. Agreeing with the Fifth DCA in Mendota Ins. Co. v. At Home Auto Glass, LLC, 348 So. 3d 641 (Fla. 5th DCA 2022), the court held that determination of “the amount of loss” necessarily includes both the extent of covered damage and the monetary amount necessary to repair or replace the damaged property. See full opinion HERE.
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June 13, 2023
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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June 13, 2023
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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June 13, 2023
Please join us in welcoming our 2023 summer law clerks!
The law clerk program is led by Jennifer Remy-Estorino and Nicole Wulwick from our Miami office, and Maegan Bridwell from our Tampa office. They focus on recruiting highly-motivated law students with top academic credentials to be paired with a mentor who provides opportunities for hands-on experiences alongside shareholders and associates. The program’s goal is to empower students to develop skills that will be critical in transitioning from the classroom to the courtroom. The experiences they receive will serve as a cornerstone to their career, hopefully here with the KD family.
Successful summer clerks are considered for associate positions upon graduation and bar admission. For more information about our program, please contact careers@kubickidraper.com.
Pictured below from left to right, we welcome: Ylena Zamora-Vargas, Chloe Buikus, Alexia Planos, Reginald Merilus, Alexa Ravencroft, Blake Paradise, Michael Del Duca, Amanda Souto, James White, Matthew Carbone, Connor Frontera, Sierra Luther, Emily Ramirez, Jen Deters, Caleb Liberman, and John Shirley.
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June 12, 2023
The strength of our firm and our country is rooted in our diversity.
Generation after generation of immigrants have helped build our country, including millions of Caribbean Americans who have contributed vibrant cultures, traditions, languages, and values.
In recognition of National Caribbean American Heritage Month, we honor our many Caribbean American team members and the countless ways Caribbean Americans have added to our society. Together, we continue to shape our future.
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June 9, 2023
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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June 9, 2023
Karenny Montan, Nicole Wulwick, Samantha Joseph, Caryn Bellus, and Ana Martino, recently attended the Miami Dade Florida Association of Women Lawyers’ (MDFAWL) 43rd Annual Installation & Awards Reception. The event celebrated women in the field who have paved the way and was attended by over 300 lawyers from South Florida and 31 judges.
To learn more about MDFAWL, please visit: https://www.mdfawl.org/
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